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Illegal Outdoor Burning Enforcement Online Class TIDRC004 Companion website: http://www.tidrc.com/onlineburning.html Approved by Department of State Health Services Six Continuing Education Units Developed August, 2012 Last Updated on January 9, 2013 John H. Ockels, Ph.D. Copyright (c) 2012 John H. Ockels No Claim to Original Texas State Government Works All rights reserved.


Illegal Outdoor Burning Class (Online)

Illegal Outdoor Burning Enforcement

Welcome This is the online class Illegal Outdoor Burning. This class seeks to convey basic information about how local governments — cities, counties, and some special districts — can use their code, law enforcement, and environmental suit powers to control illegal outdoor burning wherever it happens. This is class is not really complex, but it is a little long. It is identical to the content of the in-person class we teach on the same subject. Therefore its successful completion carries six (6) continuing education units. My name is John Ockels, and I’m going to be your instructor for this class. I'm the director of the Texas Illegal Dumping Resource Center, and I’ve been teaching this subject about 15 years. I wrote this document that you’re reading, so if you spot any errors or unbelievable assertions, please direct them to me at my email: ockels@tidrc.com. At TIDRC our mission is to help Texas cities and counties get better at dealing with illegal dumping, illegal outdoor burning, and other forms of local pollution. To that end, we present between 35 to 45 day-long in-person classes each year in different parts of Texas. If you haven't attended one, I'd encourage you to do so. They're a lot of fun, you earn CEUs, and you might even learn something useful to you and your city, county, or district. You can find out more about our classes elsewhere on this website, and if you want to host a class in your community, just drop me an email. About the Process This particular online class is easy to complete: 1. Register and pay your fee (you probably already did that). 2. Read this material. 3. Pass the un-timed test (you can take it as many times as necessary). 4. Certify that you did the work yourself. 5. Receive your Certificate of Completion. That’s all there is to it. When you’ve finished all five of these steps, you’ll have your Certificate of Completion, just as the Department of State Health Services has authorized us to provide you. This certificate will attest to the fact that you have earned

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Illegal Outdoor Burning Class (Online)

six credit hours in Illegal Outdoor Burning Enforcement. We’ve gone to a lot of trouble to develop this class to tell you just about everything we can think of that will help you master this subject, which will help you personally, the citizens you serve, and the place where you work. By working your way through the entire document, even though it may take a little while to complete, you’ll actually be smarter on the subject than you are now (and, for gosh sake, if something doesn’t sound right to you, send me an email about it). The Certificate of Completion you earn will attest that you have really mastered this information. You may need to give your city or agency a copy of the certificate you earn for their files, but its your responsibility to retain a personal copy. If you are selected for training audit by DSHS, this certificate is part of the information you’ll have to provide. We maintain training records at this end too, as required by the state. So if you lose your certificate, just contact us for a free replacement. But since we’re going to send it to you as an attachment in an email, so you’ll probably have your own backup copy of the certificate in your old email. If you are involved in law enforcement and need TCLEOSE hours, ask your Chief or Training Officer to approve your work in this class and to update your training record at the state, like any other online class you may have taken. The TCLEOSE number for this class is 3880 - Environmental Enforcement, which is the number they use for all environmental enforcement classes. Please let me know if your Chief or Training Officer needs additional documentation from us, and we’ll send it along. A number of firefighters take our classes too, and retain the Certificate of Completion for this one with the others they earn during the year. This class is particularly good for volunteer firefighter, who can’t always get accurate information on this subject, as well as any government staff — including emergency planning personnel and 9-1-1 operators — with responsibilities for working between the public and local government. As you can see, taking this class is an easy process, and it should take you about six hours to complete the reading and take the test. Don’t feel like you have to do all the work at once. Just read along as you have time, and, when you’re finished, take the test. In fact, the slower you go, the more you’ll learn. Don’t forget that you can download this document and read it later, too, or use it as a later reference. You can fins the link to

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Illegal Outdoor Burning Class (Online)

the .pdf of this document in the “Technical Note” block on the class home page. There is a Study Guide beginning on page 6 for you, and we encourage you to print this part and answer the questions as you go. If you know everything in this Study Guide, you’ll have no problem passing the test.

When you see something written inside a box like this, be sure to reflect on it and remember it too.

And if you’d like to just read the material here without registering, please do so. You just won’t be able to take the test or receive a Certificate of Completion, but we’re happy for you to read the material for personal education. Believe me, I’m also aware that there are many different ways to present material such as this, and this format will eventually appear in the form of a small book. So if you have any suggestions for improvements, please send them along to me when ever you can. Thanks in advance for your contribution, and now let’s get started.

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Illegal Outdoor Burning Class (Online)

1.

INTRODUCTION

Fire: Blessing and Curse It is hard to imagine a more useful and more widely-applied tool than fire. Primitive uses included such activities as: Clearing ground for planting; Clearing brush for ease of traveling and hunting; Driving grasshoppers into cooking pits (yum!); Running bisons over a cliff; General cooking and smoking meat; Sending signals; Bending and straightening wood for bows, arrows, and spears; Working metals; Heating caves; Sterilizing surgical instruments; Law enforcement tool (i.e., burning witches; burning down barns to flush-out the outlaws, etc.); Getting rid of discarded things you don’t want (i.e., trash burning, cremation); Ceremonies of all sorts … because fire itself is a wonder that warms our bodies and our spirits, etc., etc., etc.

All that’s changed through history is the applications to which we have put fire: they have become more numerous. So fire has to be controlled and its use regulated. Every society has regulated the use of fire: capitalist, communist, caveman, you name it. Since all humans have regulated the use of fire … there have always been arguments about what control and regulation is proper. That is not going to change. Sometimes the “regulation” has been a warning or small penalty from the chief … or from whatever constitutes government. Sometimes the regulation has been somebody being held for more punishment … because what the guy did was to use fire in such a way that was very dangerous to his neighbors. Throughout history, some folks badly misusing fire have been hung on the spot … or maybe thrown into the fire themselves. We generally don’t do that anymore, but as our understanding of the dangers of various fumes and smoke contents has become better, criminal laws have become tougher. And it’s always been that a person burning somebody else’s property has to make

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Illegal Outdoor Burning Class (Online)

restitution for the damages … even if the fire itself was “legal.” Texas Outdoor Burning Rule Sec. 111.221. Responsibility for Consequences of Outdoor Burning. The authority to conduct outdoor burning under this regulation does not exempt or excuse any person responsible from the consequences, damages, or injuries resulting from the burning and does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the burning is otherwise conducted in compliance with this regulation. Exodus 22:6 If a fire breaks out and spreads into thornbushes so that it burns shocks of grain or standing grain or the whole field, the one who started the fire must make restitution. As far as the regulation of fire is concerned, there’s really not much new. Our purpose in this class is to bring all of this regulation and control of fire up to the present for us here and now in Texas. There’s lots to learn in this field, and you won’t learn it all in this one class. But we’ll make a good dent in the subject today, and you should leave with more accurate information than you have now … so that your policies will be better. Class Objectives This class has eight formal objectives: 1. Show how local governments can control outdoor burning in six basic ways; 2. Learn which officers can use each of these six ways; 3. Briefly discuss controlling outdoor burning with local fire ordinances inside municipalities; 4. Explain and discuss the differences between county burn bans and local declarations of emergencies; 5. Explain the two ways that illegal outdoor burning can be a felony violation of Texas Water Code Sec. 7.182 and Sec. 7.183 (yes, criminal outdoor burning provisions are in the Texas Water Code, of all places); 6. Explain the way that illegal outdoor burning can be a misdemeanor violation of Texas Water Code Sec. 7.177; 7. Discuss the contents of the Texas Outdoor Burning Rule [30 Texas Administrative Code Section 111 (Subsection B)] and show how its violation is a misdemeanor crime as well as an administrative rule violation (in fact, with this

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Illegal Outdoor Burning Class (Online)

law it’s a misdemeanor because it’s an administrative rule violation); 8. Identify common policy problem areas that cities and counties face in developing good outdoor burning policies. Note that throughout this class “TWC” will refer to the Texas Water Code; “THSC” will refer to the Texas Health and Safety Code; “LGC will refer to the Texas Local Government Code; and “GC” will refer to the Texas Government Code. Class Contents 1. Introduction [Page 4] Fire: blessing and curse [4] Class objectives [5] Class contents [6] Class study guide [7] 2. Six enforcement options available for local governments [10] Six local government enforcement options [10] Structure of Texas environmental enforcement [11] Who can enforce illegal burning laws, rules, and ordinances in Texas 3. Using municipal codes to control illegal burning [18] The problem with municipal codes [19] The problem with the International Fire Code [20] 4. Using health nuisance laws to control illegal burning [22] Parallel logic: first the guy dumped … then he burned [23] 5. County burn bans [24] County burn ban statute [24] 6. Declarations of local disasters [28] 7. Felony illegal burning [31] TWC Sec. 7.182 Reckless emission of air contaminant [31] TWC Sec. 7.183 Intentional or knowing emission [34] 8. Misdemeanor illegal burning [37] Violating the outdoor burning rule = committing a crime [37] TWC Sec. 7.177: Misdemeanor criminal burning statute [38] Beware air nuisance enforcement [39] Comments on the Texas Outdoor Burning Rule [40] But what is the penalty for misdemeanor burning? [41] Is the Texas Outdoor Burning Rule constitutional? [43] Possible work-arounds to avoid penalty confusion [44] 9. Major suits by cities and counties [46]

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Illegal Outdoor Burning Class (Online)

10. Policy issues surrounding illegal burning 11. Appendix: Outdoor Burning Rule [52]

[48]

Class Study Guide If you make sure you can answer all of the questions in this Study Guide, you’ll be able to successfully pass the final examination. On that test, you’ll need to get 72% of the questions correct (18 of 25 questions) and, you have as many attempts to pass as you need. 1.

True or false, there are specific Texas criminal laws that your city or county can use to respond to illegal outdoor burning.

2.

True or false, the Texas illegal outdoor burning laws apply to private property as well as public property.

3.

True or false, burning debris from commercial activities is authorized by the Texas Outdoor Burning Rule as long as the burning is in unincorporated areas.

4.

Which of the following is NOT an objective of this class? a. Show six ways local governments can control outdoor burning b. Show which types of officers can use each of the six local control methods c. Encourage local governments to refer all outdoor burning cases to the TCEQ d. Show how illegal outdoor burning can be a felony or a misdemeanor

5.

True or false, in most outdoor burning cases there is only one correct way to handle the case.

6.

True or false, in felony outdoor burning, if the first responder from local government is the person “put in intimate danger of death or serious bodily injury,” that fact would meet the element required under TWC Sec. 7.182.

7.

True or false, a county commissioners’ court can impose a burn ban over any part of the county, including inside city limits, since their jurisdiction covers all people paying county taxes.

8.

True or false, burn bans imposed by a commissioners’ court can stop all forms of open burning in unincorporated areas.

9.

True or false, local disasters under Chapter 418 of the Government Code can only be declared by the county judge.

10. True or false, a city or county can adopt and impose a criminal penalty including a fine to $1,000 and/or confinement for up to 180 days for failing to comply with

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Illegal Outdoor Burning Class (Online)

a local Emergency Management Plan during a declared disaster. 11. True or false, some jurisdictions prefer to use THSC Sec. 341.013(c) to respond to small illegal disposal fires rather than TWC Sec. 7.177(a)(5). 12. The definition of an “air contaminant” found in THSC Sec. 382.003(a) includes all but which of the following: a. Vapors emitted by an unpermitted automobile paint booth in a garage b. Smoke emitted from burning the insulation from stolen copper wire c. Fumes emitted from a clandestine drug production laboratory d. Odors emitted by 1,000 pigs on the farm down the road 13. What’s one major difference between the two statutes used to respond to felony outdoor burning? a. The weather conditions existing at the time of the emission b. Whether the fire took place on public or private property c. Whether a person was harmed by fumes by accident or if the harm was intended d. Whether the peace officer responding had specialized environmental training 14. True or false, the potential fines set for felony outdoor burning are roughly the same as for a Class A misdemeanor. 15. True or false, the confusion over the criminal penalties for misdemeanor outdoor burning will require a policy decision by your county attorney. 16. True or false, a city may adopt a local outdoor burning ordinance with provisions more strict than the Texas Outdoor Burning Rule because a city is closer to the violation than the state. 17. True or false, all violations of the Texas Outdoor Burning Rule should be referred to the TCEQ for enforcement action. 18. True or false, as soon as commercial collection of household waste is available throughout the unincorporated parts of a county, residents there can no longer burn their household trash. 19. True or false, according to the Texas Outdoor Burning Rule, local fire departments may authorize outdoor burning of commercial waste, as long as the burner pays the fire department for “stand-by” protection services. 20. True or false, according to the Texas Outdoor Burning Rule, as long as an event of outdoor burning was done in strict compliance with the rule, the person doing

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Illegal Outdoor Burning Class (Online)

the burning has no liability for accidental damage to nearby structures. 21. Which of the following routinely receive training in what constitutes felony and misdemeanor outdoor burning? a. 9-1-1 operators as part of their state-mandated training b. Sheriff deputies and other officers in their police academy basic training c. Fire marshals and fire fighters in their training at TEEX d. Local prosecutors in their law school training e. Justice and county court at law judges as part of their annual training f. City managers as part of MPA training at Texas universities g. Municipal code enforcement officers in their formal training from TEEX h. County judges and commissioners as part of their orientation training i. County Emergency Management Coordinators in their mandated training j. Television and radio reporters in journalism school k. The general public as part of their high school and college education l. None of the above … which is a major problem 22. True or false, disposal of brush by burning in unincorporated areas, on the property where the brush grew, is legal for any reason throughout Texas. 23. True or false, the International Fire Code (of 2003, 2006, 2009, or 2012), once adopted by a city, becomes the basis for authorizing open fires and replaces the Texas Outdoor Burning Rule. 24. Which of these fires is a felony burning violation (the word “harmed” means “put in imminent danger of death or serious bodily injury” in these choices): a. A guy is burning insulation off stolen wire and nobody gets hurt b. A guy is burning insulation … and is himself harmed by the the fumes c. A guy is burning insulation … and a fireman is harmed by the fumes d. A guy is burning insulation … and his nephew is harmed by the fumes e. A guy is burning insulation … and the neighbors prize roses are destroyed 25. True or false, all government staff and volunteer firefighters should know what constitutes felony and misdemeanor outdoor burning.

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Illegal Outdoor Burning Class (Online)

2.

☆

SIX ENFORCEMENT OPTIONS AVAILABLE FOR LOCAL GOVERNMENTS Most Important Thing to Learn in this Section There are 7 ways to control illegal burning, and local governments can use 6.

Overall, there are seven ways we can control outdoor burning in Texas, and local governments can use six of these. The seventh is reserved for the Texas Natural Resources Conservation Commission, and consists in administrative enforcement of the Texas Outdoor Burning Rule [Title 30 T.A.C. Sec. 111 (Subchapter B)]. (It’s in the Appendix). The Texas Outdoor Burning Rule is a rule issued under the Texas Clean Air Act. The TCEQ administrative staff in the regional offices and at their Austin headquarters also enforce other rules issued under the Texas Clean Air Act and other anti-pollution statutes. Their Environmental Crimes Unit also enforces a wide range of criminal laws that protect our air, water, and land, including the felony laws against unpermitted burning. Most of this class will focus on the six ways in which local governments can stop or control outdoor burning. Six Local Government Enforcement Options There are six ways that local government can deal with outdoor burning. Each of these will be discussed in the pages that follow. But for now, just notice their categories. Outdoor burning can be controlled or stopped, depending on the situation and violation, in these ways: 1. 2. 3. 4. 5.

Municipal Codes for cities that have them (most do); County Burn Bans in droughts and other conditions under Local Government Code Sec. 352.081; Local Emergency Declarations under Government Code Sec. 418.004 and Sec. 418.108; Felony Illegal Burning under Texas Water Code Sec. 7.182 and Sec. 7.183; Misdemeanor Illegal Burning under Texas Water Code Sec. 7.177(5)(a) for violations of the Texas Outdoor Burning Rule; and,

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Illegal Outdoor Burning Class (Online)

6.

Major Civil Suits by cities and counties under Texas Water Code Sec. 7.351 for burning that violates laws, rules, permits, and TCEQ orders.

Structure of Environmental Enforcement in Texas

There’s a way to handle illegal burning under each of these levels, depending on the situation, as we’ll see as we get into the class details. Moreover, within most of these levels there are multiple options available. For instance, there are usually several criminal laws that work, given the facts of the situation. If you need a bigger copy of this chart for any reason, you can get one on the Resources pages at tidrc.com. Note that the names of the five approaches are shown on the left side of the chart, written in rotated letters. Working from the bottom to the top: Admin refers to the enforcement of Texas Administrative Code by the administrative officers of the Texas Commission on Environmental Quality. This is the only type of enforcement shown here that cannot be done directly by local

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Illegal Outdoor Burning Class (Online)

authorities. Your city or county can sue a rule violator under your power at TWC Sec. 7.351, but you can’t directly enforce the administrative rules; only the state can do direct administrative enforcement. Code refers to municipal code enforcement by officers in most Texas cities. Some cities have adopted some edition of the International Fire Code — often without it being closely read or amended. We’ll look at problems that this approach may cause, and at how easy it is to avoid these issues. Health refers to the enforcement of health nuisance statutes by one of the 61 formally organized local health departments in the state, including one your city or county might have. Note that police, deputies, constables, TCLEOSE-certified fire marshals, and other law enforcement officers can also enforce these laws, with or without the presence of a formal health department in the jurisdiction. There is a health nuisance statute that is quickly becoming a favorite way of dealing with sentencing issues found in misdemeanor outdoor burning violations: THSC Sec. 341.013(c). Criminal refers to local peace officers enforcing various state criminal statutes designed by the state legislature to keep pollution under control. State-level peace officers … including the criminal investigators of the TCEQ’s Environmental Crimes Unit and the specialized game wardens in the Texas Parks and Wildlife Department’s Environmental Crimes Unit … can also enforce these laws. But almost all of the criminal enforcement work falls on local peace officers, just because of the number and location of cases and officers. Civil refers to local county attorneys and city attorneys using their powers under TWC Sec. 7.351 to sue polluters, including major unpermitted commercial burners, to make them stop their activities and to pay civil damages (which can amount to $25,000 per day per violation). Texas local governments … cities, counties, and many special districts … can use all of these except administrative enforcement. That approach is reserved to the various state agencies. Note that you don’t have to apply these approaches in any sequence, and you can often use multiple approaches simultaneously. Another good source of information on how cities and counties can deal with illegal burning, dumping, and other forms of pollution is the TCEQ’s Environmental Crimes Unit, managed by Dan McReynolds (512-239-3405). The contact for the TPWD Environmental Crimes Unit is Captain Jonathan Grey, 512-844-1610.

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Illegal Outdoor Burning Class (Online)

Who Can Enforce Illegal Burning Laws, Rules, and Ordinances in Texas Overall Environmental Enforcement Options in Texas Administrative

City

Not Available

Civil 2. Municipal Code Officers

5. Local Certified Peace Officers

3. City or County Health Department Officers

6. Local Environmental Enforcement Officers

11. Suits by City and County Attorneys 3. City or County Health Department Officers

County

Not Available

4. County Employee Trained by Local Health Authority 11. Suits by City and County Attorneys

1. State Administrative Officers - TCEQ

State

Criminal

12. Suits by State Attorney General’s Office

10. Local District and County Attorney Investigators 5. Local Certified Peace Officers 6. Local Environmental Enforcement Officers 9. Travis County Attorney Criminal Investigators 10. Local District and County Attorney Investigators 7. TCEQ Environmental Crimes Unit Investigators 8. Texas Parks and Wildlife Department Environmental Crimes Unit Investigators

State and Local Environmental Enforcement Officers and Officials: (The rules and statutes related to outdoor burning each group can enforce are shown in red)

1. State Administrative Officers … such as those working for the TCEQ and Railroad Commission … enforce Texas administrative rules statewide, along with making sure the permits issued by their agencies are followed and any orders made by their commissioners are enforced. Since local governments can not perform this level of direct administrative enforcement, it’s important for local governments to

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Illegal Outdoor Burning Class (Online)

develop informal cooperative partnerships with these state agencies. The TCEQ administratively enforces Texas Outdoor Burning Rule (30 T.A.C. Sec. 111, Subchapter B), the air nuisance rule, and other anti-pollution rules.

2. Municipal Code Officers enforce the municipal codes adopted by their cities. Most enforcement is through agreed consent, but about 350,000 code cases a year wind-up in municipal court. Our 254 counties have no municipal codes to enforce (a few have solid waste rules), so this level of enforcement can’t happen in the unincorporated areas. About 77% of Texans live someplace covered by municipal codes, and volume-wise, this is the most important source of protection to the environment. Local municipal ordinances that agree with the Texas Clean Air Act and Texas Outdoor Burning Rule may be enforced by cities.

3. City or County Health Department Officers enforce public health nuisances found in THSC Chapter 341 and, to a lesser extent, THSC Chapter 343. These may be specialized officers who only enforce one violation — for example, assuring restaurant sanitation under THSC Sec. 341.011 — or general environmental health officers who enforce a wider set of THSC Chapters 341 and 343. At last count on the DSHS website there were 61 formal health departments in Texas, organized under THSC Chapter 121. Use THSC Sec. 341.013(c) and THSC Sec. 365.012 at C Misdemeanor level to deal with “dumping+burning” violations.

4. County Employee Trained by Local Health Authority. State law allows for counties to have their designated local health authority train a county employee to enforce “any law that is reasonably necessary to protect the public health.” Your county may not have to do this if it has established a formal health department. Use THSC Sec. 341.013(c) and THSC Sec. 365.012 at C Misdemeanor level in unincorporated areas to deal with “dumping+burning” violations.

5. Local Peace Officers enforce the criminal environmental laws, including THSC Chapters 341, 343, and 365 as well as Texas Water Code Chapter 7 (Subchapter E). These are just more criminal statutes — in addition to the Penal Code and Traffic Code — and carry penalties from very small fines to major fines and confinement. Such officers include police, deputies, constables, state game wardens, TCLEOSE-certified fire marshals, and other peace officers working in or with local government. Unless your local peace officers are trained to recognize environmental crimes, they can’t help the general environmental enforcement effort.

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Illegal Outdoor Burning Class (Online)

THSC Sec. 341.013(c) and THSC Sec. 365.012 “dumping+burning” violations TWC Sec. 7.182 and Sec. 7.183 Felony illegal burning TWC Sec. 7.177(a)(5) Misdemeanor illegal burning

Local peace officers are the primary source of environmental criminal enforcement, not the state.

6. Local Environmental Enforcement Officers. Some counties have appointed special peace officers who receive a great deal of environmental criminal enforcement training to enforce the state criminal laws protecting our water, land, and air. They also enforce THSC Chapters 341, 343, and 365 as well as Texas Water Code Chapter 7 (Subchapter E). They can also enforce the criminal provisions of TWC Chapter 11 (Water Rights) to stop persons stealing water, although I know of no local officer doing so presently. In some counties this specialized officer is a deputy sheriff; in others it is an officer associated with the county fire marshal’s office or a deputy constable. THSC Sec. 341.013(c) and THSC Sec. 365.012 “dumping+burning” violations TWC Sec. 7.182 and Sec. 7.183 Felony illegal burning TWC Sec. 7.177(a)(5) Misdemeanor illegal burning

7. TCEQ Environmental Crimes Unit Investigators. This is a very small group of criminal investigators — not TCLEOSE-certified peace officers — who handle major environmental criminal cases statewide. There are about ten investigators, supported by a manager and two specialized criminal attorneys, in this unit. Cases they develop are normally filed in Travis County, which has statewide jurisdiction on most environmental cases. When they need to make an arrest, they team with Texas Parks and Wildlife Environmental Crimes Unit officers or local peace officers. These are some of the smartest environmental criminal investigators in the state. Local officers benefit from knowing the TCEQ investigators assigned to their area, such as Roger Garcia and Paul Gorman, who work the Dallas/Ft. Worth area. You can reach this unit at its Austin headquarters at 512/239-3405. THSC Sec. 341.013(c) and THSC Sec. 365.012 (not too likely) “dumping+burning” violations TWC Sec. 7.182 and Sec. 7.183 Felony illegal burning TWC Sec. 7.177(a)(5) Misdemeanor illegal burning (not too likely)

8. Texas Parks and Wildlife Department Environmental Crimes Unit Investigators. These six officers, who begin their careers as game wardens, are supported by a manager, but no specialized attorneys (except those available at the TCEQ ECU

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Illegal Outdoor Burning Class (Online)

through the Environmental Crimes Task Force). TPWD ECU officers work statewide and normally file their environmental criminal cases in Travis County. Like the TCEQ ECU investigators, these folks are among the best in the state at this kind of enforcement. Additionally, since they are TCLEOSE-certified peace officers they do their own arrests. THSC Sec. 341.013(c) and THSC Sec. 365.012 (not too likely) “dumping+burning” violations TWC Sec. 7.182 and Sec. 7.183 Felony illegal burning TWC Sec. 7.177(a)(5) Misdemeanor illegal burning (not too likely)

8.a. Railroad Commission of Texas Environmental Crime Unit Investigators. There is no such unit at the Railroad Commission. All agency enforcement there is administrative. However, by partnering with local governments, the RRC can effectively focus a combination of criminal and administrative enforcement on any situation.

TPWD and TCEQ Environmental Crime Units are small and must cover the whole state. Use these two state ECU units as a resource for effective local enforcement; pass them the biggest, most complex cases. Get to know these folks.

9. Travis County Attorney Criminal Investigators. Travis County has statewide jurisdiction (concurrent with local counties) for most environmental crimes, including the major misdemeanors found in Texas Water Code Chapter 7 (Subchapter E). While the Travis County District Attorney’s office — which works with the TCEQ and TPWD’s Environmental Crimes Units — shares felony venue on most environmental crimes with local counties, the Travis County Attorney’s office generally works large misdemeanors closer to home (usually, Travis and near-by counties). Because of their wide experience, these officers and good sources of accurate information. Contact: Neil Kucera, Travis County ACA, Neil.Kucera@co.travis.tx.us. THSC Sec. 341.013(c) and THSC Sec. 365.012 at (misdemeanor level) “dumping +burning” violations TWC Sec. 7.177(a)(5) Misdemeanor illegal burning

10. Local District and County Attorney Investigators. In a few counties the investigators working for county and district prosecutors have the training and experience to investigate violations of state criminal anti-pollution laws. These officers are usually individuals whom have worked as environmental enforcement

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Illegal Outdoor Burning Class (Online)

officers earlier in their careers and now find themselves working as general criminal investigators for local prosecutors. THSC Sec. 341.013(c) and THSC Sec. 365.012 (at any level) “dumping+burning” violations TWC Sec. 7.182 and Sec. 7.183 Felony illegal burning TWC Sec. 7.177(a)(5) Misdemeanor illegal burning

11. Suits by City and County Attorneys. Under Texas Water Code Sec. 7.351, city and county attorneys (depending where the pollution takes place) have the right to sue polluters on behalf of their city or county in District Court. Several counties and cities around the state are currently taking this approach on different kinds of dumping and burning cases. TWC Sec. 7.351 civil suits for violation of Texas Clean Air Act and Outdoor Burning Rule

12. Suits by State Attorney General’s Office. The Attorney General’s Office may occasionally bring civil suits against violators of various environmental laws under the powers described in Texas Water Code Chapter 7, Subchapter D. In dong this they are usually working as the TCEQ’s attorney. TWC Sec. 7.351 civil suits for violation of Texas Clean Air Act and Outdoor Burning Rule

There are also registered sanitarians, designated representatives, storm water specialists and other such officers in positions to see violations and report them to local agencies. The dozen listed above, however, are the primary ones involved in mainstream anti-burning efforts.

If local prosecutors don’t participate, environmental crimes generally cannot be stopped in a county.

As you can see, there are many potential sources of enforcement to protect citizens from the pollution of state land, water, and air resources. When you couple this fact with the understanding that a particular mess can simultaneously be a violation of local ordinances, public health laws, several criminal laws, and state rules, you arrive at a fundamental policy issue. Most cities and counties simply have not thought through the enforcement policy questions of “Who is responsible for this enforcement?” and “What is the right approach to take to a particular case?”

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Illegal Outdoor Burning Class (Online)

3.

USING MUNICIPAL CODES

Most Important Thing to Learn in This Section The state, working through the TCEQ, regulates all outdoor burning. Any local burning codes must reflect this fact.

The most important thing about outdoor burning in Texas is that the state, working through the TCEQ, controls the entire process. Consequently, any local ordinance that a municipality may decide to enact to regulate outdoor burning must comply with state laws, rules, permits, and orders. The state runs the show on outdoor burning enforcement. The state law that the legislature has passed to control air emissions in Texas is the Texas Clean Air Act, which is Health and Safety Code Chapter 382. Among other sorts of emissions, it sets policy and provides the broad structure for the rules that provide the details of how the state regulates burning. Any municipal ordinance that is adopted to regulate outdoor burning by a city must conform to the Texas Clean Air Act and the Texas Outdoor Burning Rule: THSC Sec. 382.113. AUTHORITY OF MUNICIPALITIES. (a) Subject to Section 381.002, a municipality has the powers and rights as are otherwise vested by law in the municipality to: (1) abate a nuisance; and (2) enact and enforce an ordinance for the control and abatement of air pollution, or any other ordinance, not inconsistent with this chapter or the commission ’s rules or orders. (b) An ordinance enacted by a municipality must be consistent with this chapter and the commission’s rules and orders and may not make unlawful a condition or act approved or authorized under this chapter or the commission’s rules or orders.

Under this state law, municipalities can do two things related to air pollution: (1) act to abate an air nuisance; and, (2) enact and enforce an ordinance to control and abate air pollution, provided that the ordinance meets both of the conditions shown above in red. To provide the details of how persons may use outdoor burning, the TCEQ predecessor agencies enacted Title 30 Texas Administrative Code Section 111,

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Illegal Outdoor Burning Class (Online)

Subchapter B Outdoor Burning — the Texas Outdoor Burning Rule — which we’ll study in detail in Section 8 below. A municipality can adopt an ordinance to control outdoor burning in the city, but it must agree with the Texas Outdoor Burning Rule and cannot take away a right given to citizens under that rule. When we read the Texas Outdoor Burning Rule in Section 8 of

this class, we’ll see that this rule covers just about any case you can think of where a person might want to burn outdoors. It is very comprehensive. The Problem with Municipal Codes On a very practical level, however, municipal codes present a big problem: they require a lot of reading, and few of us have the time or, possibly, even the interest to do this. So the real problem with codes is that local officers don’t always know their content. We think this is a problem, and it raises another issue too: “What percent of city council officials actually read the ordinances they approve before voting their approval?” This figure is unknown, but probably is about equal to the percentage of nationally elected Representatives and Senators who personally read the bills they adopt before the votes. With reference to fire codes, this can create a particularly difficult situation. For instance, there are many Texas cities that have adopted some edition of the International Fire Code as their local ordinance, the 2012 edition of which contains over 538 pages. The City of Dallas, my boyhood home, for instance, has adopted it as Chapter 16 of their set of ordinances with this statement: Chapter 16, “Dallas Fire Code” of the Dallas City Code, as amended, is composed of the most recently adopted editions of the International Fire Code Institute, as adopted and amended by the Dallas City Council. The text of Chapter 16 has been removed from the bound three-volume set of the Dallas City Code and may be obtained by purchasing the Uniform Fire Code, together with City of Dallas amendments, from the Dallas Fire Department, Fire Prevention Education and Inspection Division.

Perhaps your community has adopted an edition of the International Fire Code as your fire ordinance. If so, here are four questions about this for your consideration: 1.

What city council members read the International Fire Code before they voted its adoption?

2.

Of the officers working at your agency with responsibilities for enforcing

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this particular code, how many have read it in its entirety?

3.

How many general and other specialized code enforcement officers working in your city have read their fire code, and are thereby in a position to refer possible violations they see while on properties for other reasons?

4.

Most important for us, who has made certain that the code adopted, with or without amendment, is “consistent with THSC Chapter 382 and the commission’s rules?” It’s impossible to enforce local ordinances properly if the officers themselves haven’t read them.

The Problem with the International Fire Code What does the International Fire Code, 2012 Edition (and earlier editions) say about open burning that might be useful in its SECTION 307 OPEN BURNING, RECREATIONAL FIRES AND PORTABLE OUTDOOR FIREPLACES? 307.1 General. A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in accordance with Sections 307.1.1 through 307.5.

Those sections — 307.1.1 through 307.5 — go on to discuss the fire control official using a permitting process to control various kinds of open fires, such as bonfires and recreational fires, giving due regard for weather conditions, proximity to other property, and other factors. After discussing the times open burning might be allowed, the model code says: 307.2.1 Authorization. Where required by state or local law or regulations, open burning shall only be permitted with prior approval from the state or local air and water quality management authority, provided that all conditions specified in the authorization are followed.

This section 307.2.1 Authorization is the thing to note, because Sections 307.1.1 through 307.5 are totally replaced in Texas by the provisions of the Texas Outdoor Burning Rule, which controls all outdoor — “open” — burning in Texas. All of the duties assigned to the fire control officer in Section 307 of the model ordinance are reserved in Texas to the TCEQ and those persons designated in the Texas Outdoor Burning Rule. If a city follows Sections 307.1 through 307.5 (ignoring Section 307.2.1) and establishes a permitting process to regulate open burning, that city

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would have failed to note that Section 307.2.1 overrides the rest of Section 307 in Texas. Cities adopting the International Fire Code have to make sure that the IFC has been amended locally in such a way that it is consistent with the commission’s rules. In Texas, Section 307 of the International Fire Code can not be a valid local ordinance, if a Texas city adopts it as written and elects to follow a process to issue permits for open burning, because that would not be consistent with the Texas Clean Air Act, which takes precedence. Believe it or not, some representatives of local fire departments argue that the IFC takes precedence over state rules. Well, it doesn’t. Regardless of the nifty word “International,” this is simply more municipal code, often adopted without being read in its entirety. In Texas, municipal codes have to conform to state law, and in the case of regulating open burning, that state law is the Texas Clean Air Act, Section 382.113 and the Texas Outdoor Burning Rule.

If you’ve adopted the International Fire Code be sure it is amended so as to not contradict the restrictions placed on cities under state laws and rules, especially with reference to open burning at Section 307.

So, make sure any codes you have adopted are consistent with the Texas Outdoor Burning Rule — some jurisdictions have just adopted that entire rule as a local ordinance — and, if you have adopted some edition of the International Fire Code, be sure Section 307 on open fires is amended to show the permit-issuing procedure in the model IFC is not the one the city will be using.

If your agency is issuing “burn permits” or a similar document, what’s your statutory authority to do so? Hint: No such statutory authority exists in state law.

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4.

USING HEALTH NUISANCE STATUTES Most Important Thing to Learn in this Section Some counties (and cities) use the health nuisance laws to regulate minor outdoor burning.

Texas health nuisance laws were not originally designed to use in fighting illegal outdoor burning. They are more frequently used to suppress illegal dumping, sewage and other minor waste water pollution, and messes of all sorts that are sources of rodents and insect vectors that carry diseases to and between humans. However, some jurisdictions in Texas are using one provision of the primary Texas health nuisance law — THSC Chapter 341. MINIMUM STANDARDS OF SANITATION AND HEALTH PROTECTION MEASURES — to deal with the resulting residue of unauthorized burning. The jurisdictions taking this approach are doing so because the sentencing requirements under the existing misdemeanor illegal burning law — TWC Sec. 7.177(a)(5) — are not at all clear. Although our State Legislature attempted to create

a statewide Class C misdemeanor for most illegal outdoor burning, a careful reading of the law they created leads to the conclusion that they didn’t quite get the drafting right. Since the penalties for misdemeanor outdoor burning are probably (see Section 8) still a fine ranging from $1,000 to $50,000 and/or a maximum of 180 days confinement, many officers who want to handle minor outdoor burning cases in JP Court are filing under a provision of THSC Chapter 341: Sec. 341.013. GARBAGE, REFUSE, AND OTHER WASTE. (c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents.

The logic at work here is that by burning any of these items in a way that does not strictly follow the provisions of the Texas Outdoor Burning Rule, a person has actually disposed (of waste) in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water. The residue of ash, partially burned commercial rubbish and chemicals “may” be polluting the nearby land or water. The penalty for first offense conviction of a violation of this statute is low, a fine of $10 to $200 (see THSC Sec. 341.091), but it gets the violator in front of a judge. By handling any subsequent violation as a civil matter, the case can remain in the same court with a

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potentially larger fine (to $1,000 under THSC Sec. 341.092). As you understand the difficulties of dealing with the policy issues surrounding the proper sentencing for misdemeanor illegal burning, you may decide that using a health nuisance law is an approach that you want to discuss with your misdemeanor prosecutor and JPs. Parallel Logic: First the guy illegally dumped ‌ then he burned Thanks to Neil Kucera, Assistant County Attorney in Travis County, for this idea: why not approach misdemeanor illegal burning by concentrating on what was dumped, and then burned? If you take this approach, you would move against the violator for the illegal dumping under standard state criminal laws (THSC Chapter 365 being the most common). Come up with a reasonable estimate of the volume before burning, and file illegal dumping charges for that amount of waste. As in using THSC Sec. 341.013(c), the idea here is to find another way to deal with burning violations rather than possibly make an error in sentencing in your criminal application of TWC Sec. 7.177(a)(5) as a local response to a violation of the Texas Outdoor Burning Rule.

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5.

COUNTY BURN BANS Most Important Thing to Learn in this Section County burn bans are just the starting point of local outdoor burning control.

Controlling illegal outdoor burning often gets confused with the subject of county burn bans, but it’s different. Imposing burn bans is a task given to commissioners courts by Local Government Code Chapter 352. COUNTY FIRE PROTECTION. Any burn ban imposed by the commissioners is done so under their powers as set forth in Sec. 352.081. REGULATION OF OUTDOOR BURNING. The title of this section may incorrectly suggest the idea that the general regulation of outdoor burning is left to the counties. In fact, virtually all decisions concerning outdoor burning are made by the state, and are published as the Texas Outdoor Burning Rule. Few decisions about outdoor burning are left to counties, but the ones that are really do matter and are very practical. County Burn Ban Statute Most county burn bans are imposed by commissioners’ court because of actual or forecast levels of the Keetch-Byram Drought Index or “KBDI.” This is a measure of moisture deficiency in the first eight (8) inches of soil. According to the Texas Forest Service interpretation (cite below) “A rating of zero defines the point where there is no moisture deficiency and 800 is the maximum drought possible.” This scale was developed by John Keetch and George Byram in a paper they wrote in 1968 when they were with the U.S. Forest Service, “A Drought Index for Forest Fire Control” (read their original at http://s.coop/vkyr). In 2002 the Texas Forest Service published an interpretation of the KBDI (see their archived paper at http://s.coop/vkyt) where they correlated the potential for fire to various ranges of the scale: 0 - 200 Soil and fuel moisture are high. Most fuels will not readily ignite or burn. However, with sufficient sunlight and wind, cured grasses and some light surface fuels will burn in spots and patches. 200 - 400 Fires more readily burn and will carry across an area with no gaps. Heavier fuels will still not readily ignite and burn. Also, expect smoldering and the resulting smoke to carry into and possibly through the night. 400 - 600 Fire intensity begins to significantly increase. Fires will readily burn in all

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Illegal Outdoor Burning Class (Online) directions exposing mineral soils in some locations. Larger fuels may burn or smolder for several days creating possible smoke and control problems. 600 - 800 Fires will burn to mineral soil. Stumps will burn to the end of underground roots and spotting will be a major problem. Fires will burn thorough the night and heavier fuels will actively burn and contribute to fire intensity.

The Texas Forest Service updates this index for all of Texas each day, with actual and forecast KBDI indices. County judges — hopefully at the urging of their county Emergency Management Coordinator or Fire Marshal — monitor this information and bring it to the attention of the commissioners’ court for review and possible action. Forward-thinking counties — such as Grayson County up here north of Dallas — establish policies requiring certain actions at certain levels of KBDI. Their burn ban policy has been incorporated into their local Emergency Management Plan (Annex F and Annex U). I think the Emergency Management Coordinator has done a great job on this. With this understanding of the importance of the KBDI for local policy makers in mind, let’s look at the statute allowing commissioners’ courts in Texas to set burn bans, Local Government Code, Section 352.081. Sec. 352.081. REGULATION OF OUTDOOR BURNING. (a) In this section, "drought conditions" means the existence of a long-term deficit of moisture creating atypically severe conditions with increased wildfire occurrence as defined by the Texas Forest Service through the use of the Keetch-Byram Drought Index or, when that index is not available, through the use of a comparable measurement that takes into consideration the burning index, spread component, or ignition component for the particular area. (b) On the request of the commissioners court of a county, the Texas Forest Service shall determine whether drought conditions exist in all or part of the county. The Texas Forest Service shall make available the measurement index guidelines that determine whether a particular area is in drought condition. Following a determination that drought conditions exist, the Texas Forest Service shall notify the county when drought conditions no longer exist. The Texas Forest Service may accept donations of equipment or funds as necessary to aid the Texas Forest Service in carrying out this section. Note: The KBDI information is continually available for every county at http:// s.coop/vkyy. (c) The commissioners court of a county by order may prohibit or restrict outdoor

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Illegal Outdoor Burning Class (Online)

burning in general or outdoor burning of a particular substance in all or part of the unincorporated area of the county if: (1) drought conditions have been determined to exist as provided by Subsection (b); or (2) the commissioners court makes a finding that circumstances present in all or part of the unincorporated area create a public safety hazard that would be exacerbated by outdoor burning. The burn ban applies to all or part of the unincorporated areas only, based on drought conditions or commissioners’ court finding. (d) An order adopted under this section must specify the period during which outdoor burning is prohibited or restricted. The period may not extend beyond the 90th day after the date the order is adopted. A commissioners court may adopt an order under this section that takes effect on the expiration of a previous order adopted under this section. The burn ban can roll forward for up to 90 days, although most are for a shorter length of time. (e) An order adopted under this section expires, as applicable, on the date: (1) a determination is made under Subsection (b) that drought conditions no longer exist; or (2) a determination is made by the commissioners court, or the county judge or fire marshal if designated for that purpose by the commissioners court, that the circumstances identified under Subsection (c)(2) no longer exist. (f) This section does not apply to outdoor burning activities: (1) related to public health and safety that are authorized by the Texas Natural Resource Conservation Commission for: (A) firefighter training; (B) public utility, natural gas pipeline, or mining operations; or (C) planting or harvesting of agriculture crops; or (2) that are conducted by a prescribed burn manager certified under Section 153.048, Natural Resources Code, and meet the standards of Section 153.047, Natural Resources Code. Notice that burn bans cannot prohibit all open fires, and commissioners often set one other exception themselves — to allow for the continued use of grated burn barrels to dispose of domestic waste. The three activities listed above are free to continue during a burn ban. Notice that this section seems to anticipate that outdoor burning would be authorized during a burn ban for “planting or harvesting of agriculture crops,” a term not specifically found in the Texas

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Illegal Outdoor Burning Class (Online)

Outdoor Burning Rule. (g) Any person is entitled to injunctive relief to prevent the violation or threatened violation of a prohibition or restriction established by an order adopted under this section. Injunctions are authorized, although I’ve never heard of one actually being imposed. (h) A person commits an offense if the person knowingly or intentionally violates a prohibition or restriction established by an order adopted under this section. An offense under this subsection is a Class C misdemeanor. The penalty is a Class C misdemeanor, although commissioners courts frequently set other penalties, such as a fine to $1,000. It’s hard to imagine where this practice derives it’s authority; probably from local custom.

In many minds, the regulation of outdoor burning is equal to imposing and lifting burn bans; that’s wrong. As you go further into this class, you’ll see that while burn bans are an important way to respond responsibly to drought conditions, they are just the start.

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Illegal Outdoor Burning Class (Online)

6.

DECLARATIONS OF LOCAL DISASTERS

Most Important Thing to Learn in this Section Local emergency declarations are often an underused tool.

Declarations of Local Disaster County judges and mayors have powers to declare local disasters for their jurisdictions. These declarations are good for up to seven days but must be taken before their commissioners court or city council to be effective beyond seven days. The definition of a “disaster” and the state laws governing them are: TEXAS GOVERNMENT CODE Sec. 418.004. DEFINITIONS. In this chapter: (1) "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, other public calamity requiring emergency action, or energy emergency. Note that actual and threatened fires and air contamination fall within the definition of “disaster.” County judges and mayors may declare local disasters in response to the threat of fire, order the evacuation of all or part of his or her jurisdiction, and impose criminal penalties for non-compliance. (Under Sec. 418.173, a city or county can set a criminal penalty for violating its Local Emergency Management Plan as long as the penalty does not exceed a fine of $1,000 and confinement of more than 180 days. When the disaster is declared and the Emergency Management Plan goes into effect, so does the criminal penalty.) Sec. 418.108. DECLARATION OF LOCAL DISASTER. (a) Except as provided by Subsection (e), the presiding officer of the governing body of a political subdivision may declare a local state of disaster. (b) A declaration of local disaster may not be continued or renewed for a period of more than seven days except with the consent of the governing body of the political subdivision or the joint board as provided by Subsection (e), as applicable. Such declarations by the county judge or mayor can last no more than seven days without the consent of the court or council. (c) An order or proclamation declaring, continuing, or terminating a local state of disaster shall be given prompt and general publicity and shall be filed promptly with the

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city secretary, the county clerk, or the joint board's official records, as applicable. (d) A declaration of local disaster activates the recovery and rehabilitation aspects of all applicable local or interjurisdictional emergency management plans and authorizes the furnishing of aid and assistance under the declaration. The preparedness and response aspects of the plans are activated as provided in the plans. (e) The chief administrative officer of a joint board has exclusive authority to declare that a local state of disaster exists within the boundaries of an airport operated or controlled by the joint board, regardless of whether the airport is located in or outside the boundaries of a political subdivision. (f) The county judge or the mayor of a municipality may order the evacuation of all or part of the population from a stricken or threatened area under the jurisdiction and authority of the county judge or mayor if the county judge or mayor considers the action necessary for the preservation of life or other disaster mitigation, response, or recovery. (g) The county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area. (h) For purposes of Subsections (f) and (g): (1) the jurisdiction and authority of the county judge includes the incorporated and unincorporated areas of the county; and (2) to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails.

County burn bans are only effective in the unincorporated parts of the county, outside the city limits. However, through declaring a local disaster and having the city council ratify the declaration within seven days, the mayor of a city can also ban outdoor burning inside the city. Generally, most open burning inside a city is already illegal, even if tolerated by local officials, but this provision is available to control burning and its impact if needed in a true disaster. It is preferred public policy, but rare, for a county judge and mayors to coordinate their activities in assuring a comprehensive ban on burning is in effect, should that become desirable. Notice that in evacuating and controlling access to disaster areas discussed in the above statute, both the mayor and county judge have authority (even if the area is inside a city limit) to exercise this control in a disaster. In the event of a conflict, the county judge has final decision power. Many cities in Texas already have comprehensive bans on all open fires, having

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adopted the International Fire Code, a specific local ordinance or some other policy requiring such total bans. However, as we shall see, all municipal ordinances relating to open burning are subordinate to state rules (primarily the Texas Outdoor Burning Rule), permits issued by the TCEQ, and orders issued by TCEQ commissioners. Cities should have their attorneys review their local burning ordinances to assure compliance with the restrictions on the scope of such ordinances found in THSC Sec. 382.113 of the Texas Clean Air Act.

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7.

FELONY ILLEGAL BURNING

Most Important Thing to Learn in this Chapter Burning without a permit + the emission hurts somebody (not first responder) = felony burning

Texas has two felony burning laws. They both have to do with emitting an air contaminant — which is a defined term that includes “smoke” — without a permit to do so PROVIDED that in the process a person is put in immanent danger of death or serious bodily injury by the air contaminant. Where these two laws differ concerns (1) the level of intention in emitting the air contaminant; and, (2) the level of intention concerning the injury itself: was it intended or not? The definition of air contaminant comes from THSC Chapter 382 — The Texas Clean Air Act: Sec. 382.003 (2) "Air contaminant" means particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural.

So the smoke coming from a burn barrel, a structure being burned, fumes coming from a paint booth, dust, and the odors from a shop across the street or some other of the listed material are all air contaminants, while the odor coming from the pig farm down the street is not. The two felony violations arise when someone is injured from an unauthorized emission of an air contaminant … injured not by the flames, but by the air contaminants being emitted. TWC Sec. 7.182: Reckless Emission + Unintended Endangerment Of the two felony provisions, this is the more general case, where the emission of the air contaminant was done recklessly, with respect to the conduct of releasing the air contaminant. Although someone was put in immanent danger of death or serious bodily injury by the smoke or fumes, this particular statute does not require any level of intent that such endangerment was an intended consequence of the emission. Although the release was done recklessly, the absence or presence of intent that the other person be injured is not a consideration. As with all of the violation any of the criminal laws in Subchapter E, ignorance of the

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law is no defense: TWC Sec. 7.201. DEFENSE EXCLUDED. It is not a defense to prosecution under this subchapter that the person did not know of or was not aware of a rule, order, or statute.

Texas Water Code Sec. 7.182. RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT, presented as a list of elements in section (a) reads: (a) A person commits an offense - if the person - recklessly, with respect to the person's conduct, - emits - an air contaminant - that places another person - in imminent danger of death or serious bodily injury, - unless the emission is made in strict compliance with Chapter 382, Health and Safety Code, or a permit, variance, or order issued or a rule adopted by the commission.

Comments Person is defined at THSC Sec. 382.003(10): ”Person” means an individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity. Recklessly is limited to the person’s conduct in emitting the air contaminant. It is

defined in Texas Penal Code Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES as: (c)  A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Emit is undefined in THSC Chapter 382. It’s common definition is to throw or give off

or out (as light or heat) [Merriam-Webster]. Places another person does not include first responders or others excluded under

TWC Sec. 7.252. Since firefighters and police freely consent to be placed in danger by responding to such burning and, in fact, the possibility of being harmed is a reasonably foreseeable associated hazard: Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an affirmative defense to prosecution under Section 7.152, 7.153, 7.154, 7.163, 7.168, 7.169, 7.170,

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7.171, 7.182, or 7.183 that: (1) the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of the person ’s occupation, business, or profession or a medical treatment or medical or scientific experimentation conducted by professionally approved methods and the person endangered had been made aware of the risks involved before giving consent; or (2) the person charged was an employee who was carrying out the person ’s normal activities and was acting under orders from the person ’s employer, unless the person charged engaged in knowing and wilful violations.

Imminent is defined neither in TWC Chapter 7 with respect to air violations nor in THSC Chapter 382. It’s specific definition is undefined in THSC Chapter 382; its common definition is ready to take place; especially: hanging threateningly over one's head [Merriam-Webster]. Imminent danger of death or serious bodily injury is a determination that is often

made in the Emergency Room of the local hospital when the person endangered is transported there from the crime scene. In one smaller county, the officer provided physicians’ affidavits to the DA in support of this element in two successive cases (in both cases the victim who was transported was reportedly a minor with a breathing problem). In the third case, which was smoke emitted from insulation being burned off of wire, nobody was transported to the hospital. However, there were children at the burn scene when the officer arrived. For this case the officer reports that he assembled technical information that the particular smoke being emitted from the burning insulation was carcinogenic and further reports that the district attorney accepted this evidence in support of this evidence. Unless, of course, the person emitting the air contaminant is strictly following a

statute, rule, permit, order, or variance. If the person has been given state permission to pollute, he or she is not going to be subject to this particular law. This law is commonly used in situations where a person is burning something without state approval and someone else is affected by the smoke and winds-up going to the Emergency Room. The violator may be a wire-burner who inadvertently impacts his own family, which often happens, or somebody deciding to have a large unauthorized debris fire, only to have the smoke from that fire harm people in a nearby subdivision. Punishment

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The punishment for an individual convicted of violating this statute, first offense, is a fine ranging from $1,000 to $250,000 and/or confinement for up to five (5) years. For a person other than an individual, the punishment for being convicted, first offense, is a fine ranging from $2,000 to $500,000. For a subsequent conviction, the potential fine and period of confinement are doubled, as provided for in TWC Sec. 7.188. This is an enormous potential penalty for a person who (1) recklessly emits an air contaminant (2) without state authorization; (3) thereby putting another person in imminent danger of death or serious bodily injury. However, the penalties for violations of TWC Sec, 7.183 are even bigger, as we’ll see in the next section.

The best felony burning charge to use is usually TWC Sec. 7.182 Both felony charges carry a five year sentence and extremely high fines; the elements of TWC Sec. 7.182 are simpler to prove.

TWC Sec. 7.183: Intentional/Knowing Emission + Knowing Endangerment This is the second of the two felony statutes, and I am unaware of it having been used by any local government to this point. However, since we do not record or enumerate convictions for environmental crimes at any level in the state, my understanding may be inaccurate. The potential confinement time in this law — five years — is the same as Sec. 7.182, but the potential fine is double that found in TWC Sec. 7.182. However, the levels of culpability to be proven are much greater in Sec. 7.183, and consequently more difficult to prosecute. To meet the criminal elements of Sec. 7.813, not only does the violator have to emit the air contaminant intentionally or knowingly, with respect to his conduct (which shouldn’t be too difficult to show by itself), but he must also emit the air contaminant knowing that he was putting the other person in danger (which generally will be very difficult to prove) and the other person actually has to have been put in immanent danger of death or serious bodily injury. Texas Water Code Sec. 7.183. INTENTIONAL OR KNOWING EMISSION OF AIR CONTAMINANT AND KNOWING ENDANGERMENT, presented as a list of elements in section (a) reads: (a) A person commits an offense - if the person

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- intentionally or knowingly, with respect to the person's conduct, - emits - an air contaminant - with the knowledge - that the person is placing another person - in imminent danger of death or serious bodily injury, - unless the emission is made in strict compliance with Chapter 382, Health and Safety Code, or a permit, variance, or order issued or a rule adopted by the commission.

Comments (see preceding section for additional remarks) Intentionally or knowingly is limited to the person’s conduct in emitting the air contaminant. It is defined in Texas Penal Code Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES as: (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Another person: As is true in the endangerment offenses of Chapter 7 (Subchapter

E) in generally, another person does not include first responders or others excluded under Texas Water Code Sec. 7.252. Since firefighters and police freely consent to be placed in danger by responding to such burning and, in fact, the possibility of being harmed is a reasonably foreseeable associated hazard: Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an affirmative defense to prosecution under Section 7.152, 7.153, 7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that: (1) the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of the person ’s occupation, business, or profession or a medical treatment or medical or scientific experimentation conducted by professionally approved methods and the person endangered had been made aware of the risks involved before giving consent; or (2) the person charged was an employee who was carrying out the person ’s normal activities and was acting under orders from the person ’s employer, unless the person charged engaged in knowing and wilful violations.

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This law will probably be rarely used, since the additional burden of proving “knowledge” of the probable effect on the victim can be so difficult. Punishment The punishment for an individual convicted of violating this statute, first offense, is a fine ranging from $2,000 to $500,000 and/or confinement for up to five (5) years. For a person other than an individual, the punishment for being convicted, first offense, is a fine ranging from $5,000 to $1,000,000. As is true of the preceding law, the range of any potential fine and period of confinement for a subsequent conviction are doubled, as provided for in TWC Sec. 7.188. If an individual or a company (a) intentionally or knowingly emits an air contaminant (b) knowing that it could cause an imminent danger of death or serious bodily injury to a person, the penalty should be severe, as the State Legislature has acknowledged by the size of these penalties. However, since the injury must have resulted from the actor’s knowing that the injury would occur, this charge is very difficult to prove and seldom filed. The potential confinement in the case of this law and the previous one — five years — is the same, and the maximum fine is in both statutes beyond the reach of virtually all defendants. Consequently, the charge of RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT is the one generally used because of the lower culpability regarding the endangerment. It’s just easier to prove. Anytime there is a fire and a person (other than a first responder) is transported to the hospital because of smoke or fume inhalation or because of other respiratory problems, officers should follow-up with the attending physician to see if, in the physician’s opinion, the person had been placed in imminent danger of death or serious bodily injury from exposure to the air contaminant. If so — and if the fire was not authorized by TCEQ rules, permit, order, or other means — then the officer should be alert to the possibility of a TWC Sec. 7.182 violation by whomever was emitting the air contaminant.These two felony charges certainly can be enforced by local police and are, in fact, much easier to enforce than misdemeanor illegal burning, as the next section will show.

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8.

MISDEMEANOR ILLEGAL BURNING

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Most Important Thing to Learn in this Chapter Violation of Texas Outdoor Burning Rule = Misdemeanor burning

This can be the most difficult area of environmental enforcement to understand and apply that local officers will face. But if you go through this section step-by-step, things should fall into place easily. This section will address: 1. The criminal statute itself: TWC Sec. 7.177(a)(5); 2. Local response to alleged air nuisances under 30 T.A.C. Sec. 101.4 (a crime under the statute in 1); 3. Local response to alleged violations of the Texas Outdoor Burning Rule (also a crime under the statute in 1); 4. Confusion in the penalties to be used for violating TWC Sec. 7.177(a)(5); and, 5. Possible work-arounds: other environmental statutes that some jurisdictions use instead to reduce local confusion. Violating the Outdoor Burning Rule = Committing a Crime When the State Legislature created the Texas Clean Air Act, back in 1989, it included THSC Sec. 382.018, which allowed the TCEQ to draft rules to govern the "outdoor burning of waste and combustible material," as the section was titled. The agency was allowed to draft rules, but not mandated to do so by the legislature. But the TCEQ predecessor agencies did draft a set of rules, following the usual process which included widespread public comment, and the resulting rule, modified several times since originally created, is the current Texas Outdoor Burning Rule. Its formal name is 30 Texas Administrative Code Sec. 111, Subchapter B. It's important to note that this is not "TCEQ's rule," but is part of the overall Texas Administrative Code under which all Texans live, work, and play. This rule was adopted under Chapter 382 of the Texas Health and Safety Code, and governs all outdoor burning in the state. Occasionally a local peace officer or sheriff will say, "This is the TCEQ's rule and I’m not bound by it." Actually, that individual is incorrect on both accounts. It is not the TCEQ's rule at all; it belongs to the people of the state of Texas, and we have adopted it in an attempt to find a rational way to regulate outdoor burning. And of

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course, we are all bound by the Texas Administrative Code, just like we are bound by every other set of laws in Texas. Moreover, in the case of local law enforcement officers, governmental managers and elected officials there is always that oath of office that one takes in which he or she agrees to protect the Constitution and the laws of the United States and Texas. TWC Sec. 7.177: Misdemeanor Criminal Burning Statute This section of the Texas Water Code is used by local peace officers when bringing charges for misdemeanor violations of the Texas Clean Air Act. Usually, the situation officers face will be an apparent violation of the Texas Outdoor Burning Rule. Since that rule is “a rule adopted under Chapter 382, Health and Safety Code” (see the law immediately below), any violation of that rule is, in turn, a violation of TWC Sec. 7.177(a) (5). Sec. 7.177. VIOLATIONS OF CLEAN AIR ACT. (a) A person commits an offense if the person intentionally or knowingly, with respect to the person's conduct, violates: (1) Section 382.0518(a), Health and Safety Code; (2) Section 382.054, Health and Safety Code; (3) Section 382.056(a), Health and Safety Code; (4) Section 382.058(a), Health and Safety Code; or (5) an order, permit, or exemption issued or a rule adopted under Chapter 382, Health and Safety Code. (b) An offense under this section is punishable for an individual under Section 7.187(1) (B) or Section 7.187(2)(C) or both [Note: a fine ranging from $1,000 to $50,000 or confinement to 180 days] (c) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(C). [Note: a fine ranging from $1,000 to $100,000]

The Texas Outdoor Burning Rule was adopted as a rule under Chapter 382, Health and Safety Code, as published in the Texas Register on September 3, 1996 at page 8505.

The first four violations shown above — Section 382.0518(a), etc. — are various technical violations of different sections of the Texas Clean Air Act. The section mentioned, for instance, requires a person to obtain a permit from the state before building or modifying any facility that may emit an air contaminant. Failure to do that is a criminal violation of this statute (and the term “facility” is very wide — including an

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unpermitted paint booth). To my knowledge, charging a person emitting an air contaminant — smoke, fumes, etc. — with a criminal violation of this law because he failed to get a permit before the facility he used to burn (or whatever), has never been done in Texas. But it eventually will be used at the local level along with the rest of these laws. The primary use of TWC Sec. 7.177 at the local level by cities, counties, and special districts with police powers is in enforcing the Texas Outdoor Burning Rule. If a person violates a provision of the Texas Outdoor Burning Rule — which may result in TCEQ administrative officers responding — she has also violated TWC Sec. 7.177, specifically at subsection (a)(5).

Misdemeanor illegal burning enforcement consists in filing criminal charges for a violation of TWC Sec. 7.177(a)(5) against individuals, companies, and associations who violate the detailed provisions of the Texas Outdoor Burning Rule. Beware Air Nuisance Enforcement The term “nuisance” has an exact meaning when discussing air quality issues and is defined at Title 30 of the Texas Administrative Code at Section 101.4: No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.

Notice how restrictive this definition is, especially at the words that are printed in bold text, and ask yourself the question, “How would I prove each of these detailed requirements?” Many of these terms would be open to interpretation in most jurisdictions. Consequently our advise to virtually every local jurisdiction is to acknowledge that proving these elements of the definition is probably beyond your capacity, and get the state involved. If it is alleged that a particular emission constitutes a “nuisance” to local air quality, (1) take down the contact information of the person making the allegation, (2) tell the person that proving the existence of a nuisance under Texas rules is a complex operation, and (3) immediately notify the air program at your regional TCEQ office. That office will be in a position to undertake the professional, highly technical analysis to determine if the annoying odor actually rises to the level that it meets the definition of

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being a nuisance. If the TCEQ determines that the air emission does not meet the definition, inform the person making the complaint that the smell they reported, annoying though it was to them, did not meet the definition used in state rules. Since there is no violation of the rule, the TCEQ can not act; additionally, since there is no violation of the rule, local government cannot act to enforce any criminal law pertaining to the alleged air nuisance. No nuisance violation has occurred. However, there may well be some underlying general health nuisance generating the odor, and local government can certainly address that [using THSC Sec. 341.013(c), for instance]. If the TCEQ determines that the emission does meet the definition of an air nuisance under 30 T.A.C. 101.4, encourage the agency to complete the process and handle the case administratively. In some well-experience jurisdictions, such as City of Houston, Harris County, and a few others, the environmental criminal investigators and District Attorney’s Office routinely handle air nuisances. They do this by undertaking criminal enforcement under TWC Sec. 7.177(a)(5) once their analysis — or the analysis of regional TCEQ administrative officers — has determined that the definition of nuisance has been met. But in our estimate, most jurisdictions do not have the technical resources to make the determination correctly in the first place, and most county attorneys would have difficulty winning a case for an air nuisance violation under TWC Sec. 7.177(a)(5).

On alleged air nuisance cases, your best bet is to get the TCEQ regional air program officers involved.

Comments on the Texas Outdoor Burning Rule At this point, please take a look at the Texas Outdoor Burning Rule, provided in the Appendix. This is the primary rule used by the TCEQ to assure that outdoor burning is done within the boundaries of the Texas Clean Air Act, which is THSC Chapter 382. If a person — an individual, company, or association — violates any provision of this rule, the TCEQ administrative enforcement staff from the regional TCEQ air section may get involved (if they know about it). They will investigate the situation and decide if an administrative violation has occurred and what response is appropriate, given the circumstances.

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But violating any of these provisions is also a criminal violation of THSC Sec. 7.177(a)(5), because the rule is a rule that was “adopted under Chapter 382, Health and Safety Code,” to use the language of that section. Criminal violations are the business of local government. So, the better local peace officers understand the provisions of the Texas Outdoor Burning Rule, the better they will be at identifying rule violations, and thereby identifying criminal violations under TWC Sec. 7.177(a)(5). Becoming knowledgeable of the contents of the Texas Outdoor Burning Rule is not something that can happen in a few minutes or with one reading. If you would be competent in understanding and applying the provisions of this rule, it will require study. But one of the aims of this class is to provide an introduction to the content of the rule, make you knowledgeable of where it can be located, and help you understand its almost unique place in criminal environmental enforcement: if you violate this rule, you have also committed a crime. Please read the rule in the Appendix and the notes that have been added to help you understand its contents. When you are complete, please return to this point and continue your reading. Additionally, the TCEQ has developed an outstanding 20-page publication that explains the rule and provides good contact information for the agency. You can download or read a copy at http://s.coop/xid0 . Additional hard copies of this document can often be obtained from the TCEQ Small Business and Local Government Assistance representative in your region.

Now please read the Texas Outdoor Burning Rule in the Appendix. When you’ve completed that reading, please resume here.

But What’s the Penalty for Misdemeanor Burning? The 81st Legislature passed a new law (H.B. 857) apparently attempting to link the penalties for outdoor burning to TWC Sec. 382.018. One of the things H.B. 857 did was

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to add some new penalties to TWC Sec. 7.187(b), which is that section of TWC Chapter 7 that sets the fines for the various violations in Subchapter E. Here’s the section added: Confusing Penalties Added by 81st Legislature TWC Sec. 7.187(3) (b) Notwithstanding Section 7.177(a)(5), conviction for an offense under Section 382.018, Health and Safety Code, is punishable as: (1) a Class C misdemeanor if the waste is not a substance described by Subdivision (3); (2) a Class B misdemeanor if the violation is a second or subsequent violation under Subdivision (1); (3) a Class A misdemeanor if the violation involves the burning of tires, insulation on electrical wire or cable, treated lumber, plastics, non-wood construction or demolition materials, heavy oils, asphaltic materials, potentially explosive materials, furniture, carpet, chemical wastes, or items containing natural or synthetic rubber.

The question is "To what do these new penalties apply?" because there are no “offenses” named at THSC Sec. 382.018 for one to be convicted of violating. As we read above, THSC Sec. 382.018 was created by the State Legislature to gave the TNRCC the option of creating rules to regulate outdoor burning. But no offenses — such as a general offense named there for violating a provision of any rule created — are to be found in Sec. 382.018. So, there’s nothing there to violate. In all fairness, it should be noted that this section was literally drafted on the last weekend of the legislative session, and perhaps the work was hurried. But whatever these misdemeanors are set as punishment for, it’s certainly not for any conviction of an “offense” under THSC Sec. 382.018. Senior environmental prosecutors with whom I have discussed this at length continue to use the original penalties contained in TWC Sec. 7.177(b) and (c) for violations of the Texas Outdoor Burning Rule: for an individual, first offense penalties of a fine ranging from $1,000 to $50,000 and/or up to 180 days in confinement; for a person other than an individual, a fine ranging from $1,000 to $100,000. Because of this potential confusion as to the penalties for violating the Texas Outdoor Burning Rule, it’s very important that officers bring this situation to their county attorney before filing misdemeanor outdoor burning violations in the wrong court. Discussing this with your county attorney before generating cases will also be

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appreciated by that person, and probably result in improved working relations on all misdemeanor environmental cases. Is the Texas Outdoor Burning Rule Constitutional? Yes it is. Back in mid-2005, in Denton County, a man named Michael Joseph Rhine decided to burn some things outside, without a permit, including cross-ties, fiberglass, tires, and PVC pipe. An officer from the Denton County Fire Marshal’s office caught him. Mr. Rhine was eventually charged with violating TWC Sec. 7.177(a)(5), since the burning was in violation of the Texas Outdoor Burning Rule. The case was heard in Denton County Criminal Court #2, Hon. Virgil Vahlenkamp, Jr. presiding. Rhine had a clever attorney – maybe – who argued before the trial got underway that the information used to charge Mr. Rhine was faulty because the section of the Texas Water Code (Sec. 382.018) upon which he charge was made was itself unconstitutional. Mr. Rhine argued that under the Texas Constitution, only the Legislature can write laws, and when it created Sec. 382.018 — this is the section that allows the TNRCC the option of writing outdoor burning rules — it unconstitutionally passed this power to the Executive (i.e., the TNRCC). Consequently, argued Mr. Rhine, he hasn't committed a crime because the law itself is unconstitutional (arguing that the legislature violated the non-delegation doctrine by passing the job of writing the rules to a state agency). Judge Vahlenkamp agreed, and the motion to quash the information was granted. The state — Denton County — appealed Judge Vahlenkamp's decision in August of 2007 to the Court of Appeals in Fort Worth. A year later in August 2008, the Court of Appeals reversed the decision of the trial court in Denton and sent it back for trial. After quoting the Texas Constitution on non-delegation, the Appeals Court cited a number of cases to the point that in our complex culture, the Legislature simply doesn't have the technical knowledge needed to write detailed laws. Of necessity it would have to defer to the various state agencies to fill in the technical gaps in the legislation. "[I]n our complex society, it is not possible for the Legislature to shoulder the burden of drafting the infinite minutiae required to implement every single law necessary to adequately govern the State of Texas."

Attorney friends tell me this point was well settled in Texas civil law, but not at that time, apparently, in criminal law. This decision to return the case to Denton County for trial was immediately appealed by Mr. Rhine to the Court of Criminal Appeals, which

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affirmed the Appeals Court decision in September 2009. The Court of Criminal Appeals decision is published at 297 S.W.3D 301. Eventually, Mr. Rhine was allowed to plead no contest in May of 2010 in Denton County Criminal Court #2, Hon. Virgil Vahlenkamp, Jr. Presiding, and paid a fine of $475. The official record in Denton County (Case ID: 1430869) shows the charge as a Class C misdemeanor, which is certainly a lesser charge than that associated with TWC Sec. 7.177. So I’d say Mr. Rhine had a good attorney after all, although it would be hard to say how much Mr. Rhine paid altogether for the results. But having a record of having committed a Class C misdemeanor is certainly preferable to having one showing essentially a Class B conviction. The Texas Outdoor Burning Rule — which was promulgated by the TNRCC under the authority granted by the State Legislature at THSC Sec. 382.018 — was found to be constitutional. Full speed ahead. Possible Work-Arounds To Avoid This Penalty Confusion There are several approaches that communities take to avoid the confusion over sentencing associated with misdemeanor burning. While there is no requirement to avoid dealing with the sentencing question discusses above, several cities and counties I’ve encountered are using one of these three primary alternatives. Each seem happy with the approach they have taken. What’s not appropriate is to ignore misdemeanor outdoor burning because it is too complex to deal with; visit with your county attorney and be guided by his or her wisdom in this matter.

Using a “work-around” is always the second-best answer. The best approach is to have your County Attorney decide which is the right sentencing to use.

Work-around alternatives commonly used: 1. Use an Ordinance Inside a City Local governments can create ordinances that duplicate provisions of the Texas Outdoor Burning Rule and set penalties appropriate for ordinance violations. Taking this approach, a city can in effect implement the provisions of the Texas Outdoor Burning Rule by enforcement in municipal court. Cities that have done

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this typically just adopt the entire rule as a new municipal ordinance and set a $500 fine for its violation. 2. Call the incidence of illegal burning “Illegal Dumping and Subsequent Burning” in the unincorporated areas — and prosecute for the dumping. Texas Health and Safety Code Chapter 365 (Litter) sets a Class C, B, or A misdemeanor or state jail felony for illegal dumping. 3. Call it “Improper Disposal” Under THSC Sec. 341.013(c) and prosecute for that violation in JP or municipal court. THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents.

Counties using this approach often rely on the provisions of the Texas Outdoor Burning Rule to identify situations in which the disposal of the waste by burning was done outside the rule, and therefore improperly done.

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9.

MAJOR SUITS BY CITIES AND COUNTIES

Most Important Thing to Learn in this Chapter Cities and counties can sue for violating Texas Clean Air Act.

In dealing with environmental pollution, such as illegal commercial disposal burning, local government has roughly the same power to file civil suits as does the State Attorney General. These powers are found in Texas Water Code Sec. 7.351 and cover violations of most state environmental statutes, the rules that have been adopted to provide administrative enforcement of these statutes, any permits that have been issued under the statutes and rules, and any orders that the TCEQ Commissioners have issued. You’ll find that most local city and county attorneys are usually unaware of these powers since they are not commonly used. Sometimes filing a large civil suit is the correct approach to take, especially in those cases where the Litter Abatement Act cannot be used because the dumping happened over three years previously. The civil penalty that a city or county can be awarded can be as much as $25,000 per day, which is split evenly with the state. There is also statutory provision for the recovery of attorney fees.

Civil suits and injunctions can often produce faster results than filing criminal charges, if your goal is to clean-up the mess or stop a particular bad practice.

These civil suit powers can be used to resolve large-scale, ongoing outdoor burning. Still, these significant powers are neither well known nor widely used. Harris County has been suing environmental violators for over 25 years, including for various violations of the Texas Clean Air Act. Until recently, they were about the only jurisdiction taking this approach. Over recent years, however, Hunt County and several of the cities there … Greenville and Commerce, in particular … have filed these major suits to deal with larger acts of pollution done for money by outside corporations. Since there can be so much money involved in civil penalties — and these are “strict liability” suits in which the city or county does not have to show that it has been actually damaged — Hunt County has found that the defense attorneys are generally very good. Moreover, these cases are generally very complex and time consuming. We recommend that cities or counties that are considering this approach get in

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contact with Daniel Ray at Scott, Money & Ray, PLLC, in Greenville. This is the private firm that Hunt County, Greenville, Commerce, Ector County, Sulphur Springs and several other Texas cities and counties are using to handle these suits. Dan’s number is 903/454-0044 and his email address is daniel@scottmoneyray.com. I personally think that using civil suits to handle major acts of pollution at the local level will become the most common approach taken, after code enforcement, in the years to come. There is generally no “statute of limitations” on these civil cases, the burden of proof is lower than in criminal cases, and the penalties that can be levied are often greater. Moreover, as soon as the suit is filed, the defense attorney will immediately appear to explain how the pollution was just a big mistake and make immediate plans to clean-up the mess. After all, when a polluting company is caught red-handed and sued, about all they can do is to quickly clean the mess and agree to never do it again … in hopes of reaching a fast settlement and avoid paying significant civil damages. One word of warning, however. Since the potential civil awards can very high, the quality of defense attorneys attracted is generally pretty high too. In environmental criminal cases, the defendant is likely to use a local criminal defense attorney, who probably has never seen a criminal environmental case before. Moreover, there is often insufficient defendant money available to finance a learning process by the criminal defense attorney. Consequently, misdemeanor and felony environmental criminal cases are often settled by an early plea agreement. This will probably not happen in civil environmental suits: early agreed settlements should not be expected. Because of the potentially high stakes, defendants with deep-pockets seem to be very ready to hire extremely good civil defense attorneys. Consequently these cases will drag out while the civil defense attorneys probe the city or county’s case from various angles, seeking an advantage that will weaken the government’s position and protect their client. For this reason, if a city or county decides to use its civil suit powers under TWC Sec. 7.351, it should turn to the professionals who do this sort of thing full-time, such as Dan Ray.

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10.

POLICY ISSUES SURROUNDING ILLEGAL BURNING

Most Important Thing to Learn in this Chapter Everybody has a lot to learn about illegal outdoor burning.

Policy Issue #1: Training

The biggest policy issue to be solved by local government is the general lack of knowledge among so many groups of people concerning the way illegal outdoor burning is managed by Texas laws, rules, and local ordinances. Policy decisions based on inaccurate information are always expensive, and in this case may easily result in the assumption of additional liability by local fire departments. For example, which of these groups regularly receive instruction on the difference between misdemeanor and felony illegal burning in their professional training? a. b. c. d. e. f. g. h. i. j. k.

9-1-1 operators as part of their state-mandated training Sheriff deputies and other officers in their police academy basic training Fire marshals and firefighters in their training at TEEX Local prosecutors in their law school training Justice and county court at law judges as part of their training City managers as part of MPA training at Texas universities Municipal code enforcement officers in their formal training from TEEX County judges and commissioners as part of their orientation training County Emergency Management Coordinators in their mandated training Television and radio reporters in journalism school The general public as part of their high school and college education

I’m sure that you already know that the answer is: None of the above … which is the exact problem. Cities and counties would do well to require these various groups to do some level of basic training on this subject. Policy Issue #2: Who can authorize outdoor burning in Texas?

Because of the lack of basic knowledge, there is always confusion around the question of “Who can authorize outdoor burning?” The list is actually very short: a. b. c.

The Outdoor Burning Rule authorizes most burning through the exceptions it lists TCEQ Executive Director or designee in writing under emergency TCEQ commissioners through issuing a permit or order

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d. e.

A “local air quality board” can authorize fire training exercises (there are 21 local boards in Texas; see the TCEQ website for a listing); and, The TCEQ Executive Director or designee in writing under emergency

There are a couple of people not listed. Sometimes a local official — such a misguided city manager in a small community — will direct someone to burn old city records. The worst case of this I know of is the city manager of a central-Texas community who directed the police chief to burn old municipal records in a burn barrel inside the city limit a couple of years ago. I’m sure the chief knew that he was breaking a local code because they fired the code officer at the same time (and I know that she was telling them not to violate city codes and state laws). But I’m equally sure that the chief did not know that he was committing a potentially expensive misdemeanor (punishable for him by a fine ranging from $1,000 to $50,000 and/or confinement to 180 days)and consequently risking his license. The other people who should never get pressed into the position of having to “authorize” outdoor (open) fires of any kind kind are firefighters and fire marshals. Most of them doing this know that they don’t have the authority to authorize outdoor burning in Texas — only the state can do that — and the practice can only put them in a bad spot. As I mentioned earlier, the unfortunate use of the word “permit” in Section 307 of the International Fire Code is probably a key source of this error inside cities. Policy Issue #3: Who can prohibit burning?

The related question is that of “Who can prohibit outdoor burning?” In answer to this question we have: a. The Texas Outdoor Burning Rule prohibits all outdoor burning in Sec. 111.201, and then relaxes this absolute prohibition through a series of exceptions; b. Local ordinances may prohibit plant growth burning inside city in attainment areas, and in doing this are in conformity with the Texas Outdoor Burning Rule; c. Commissioners’ courts can prohibit burning by issuing burn bans; d. County judges and mayors can prohibit burning for up to 7 days on their own through declarations of local disasters; e. The TCEQ can prohibit burning through the rule and the actions of their commissioners and Executive Director; f. Cities and counties can stop illegal burning through the use of civil suits (best for large, commercial activities); and,

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g. Local peace officers can stop — if not prohibit — illegal burning through the application of the criminal law. Policy Issue #4: Ongoing Conflict Areas

All of this leaves us with several recurring areas of conflict between citizens, their governments, and various levels of government. a. Rural domestic waste burning Individuals are allowed to burn their domestic waste — but not commercially generated waste (this burning requires TCEQ authorization) — in the unincorporated areas of the state until the commissioners’ court “provides” or “authorizes” the collection of waste through a formal process. This does not mean that simply having waste collection service throughout the county means that the service must be used and trash burning stopped. Until the county commissioners’ court formally acts, rural domestic waste burning is allowed under the rule (to my knowledge only four counties in Texas have mandated rural waste collection rather than allowing trash burning, and in three of these illegal dumping has increased), subject to local burn bans imposed by a commissioners’ court. b. Burning domestic waste in cities This is generally prohibited now throughout the state for the same reason. The governing body of the city has “provided” or “authorized” waste collection services through a formal process. Where the city council has “provided” or “authorized” collection, domestic waste burning cannot legally be done; c. Local government criminal enforcement is confusing Local peace officers generally know neither the felony nor misdemeanor criminal law pertaining to illegal outdoor burning. Moreover, the enforcement of misdemeanor criminal law is totally different from any other type of criminal law enforcement most peace officers have ever done. Consequently, this area of law enforcement is often full of error and reluctance; d. Pyromaniacs vs. Health Nuts The citizenry seems at times to be divided between two groups, one that want’s to burn about everything and the other that wants no open burning of any kind. Depending on the situation, both groups can be very vocal.

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Making good policy decisions that conform to state law will necessarily offend one or both groups at some time, but offending citizens is not the aim of most elected officials. Staff will have to spend a lot of time explaining and re-explaining the way outdoor burning works in Texas; e. Expecting TCEQ to have all the answers Not all of the 16 regional TCEQ air program folks know everything that is in this document, especially those sections dealing with criminal outdoor burning and the use of local civil enforcement in difficult cases. The TCEQ Environmental Crimes Unit staff are very knowledgeable on the criminal questions, but probably not on the civil suit issues. On the other hand, the TCEQ staff in regional air programs are very knowledgeable on the contents of the Texas Outdoor Burning Rule. Be sure your question is asked at the right place; and, f.

Volunteer firefighters being put in a bad position Because of the complexity of the Texas Outdoor Burning Rules, the lack of general training on criminal burning, and the fact that 75% of the firefighters in the state are volunteers, not all decisions made by local firefighters will be correct. Because of the potential liability described in Sec. 111.221 of the Texas Outdoor Burning Rule, managers of volunteer fire departments should especially be sure that their staff of fire-fighters is knowledgeable in all aspects of this subject. Do not, for instance, issue unauthorized “burning permits” or use agency equipment to do “standbys” at locations where criminal burning is taking place.

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11.

APPENDIX

Texas Outdoor Burning Rule Title 30 Texas Administrative Code Section 111 Subchapter B Outdoor Burning Sec. 111.201. General Prohibition No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter or by orders or permits of the commission. Outdoor disposal or deposition of any material capable of igniting spontaneously, with the exception of the storage of solid fossil fuels, shall not be allowed without written permission of the executive director. The term “executive director,” as defined in Chapter 3 of this title (relating to Definitions), includes authorized staff representatives. Note: This is the controlling provision of the rule. In first sentence, the state asserts the position of the Texas Clean Air Act that the State sets policy and laws concerning all aspects of outdoor burning in Texas. Outdoor burning in Texas must conform to this rule, TCEQ permits, and TCEQ orders. What this rule does is (1) prohibit all outdoor burning in Texas; and then, (2) list a series of exceptions to that general prohibition. For instance, when we get to the section on disposal fires in Sec. 111.209, there is an exception under which domestic waste — household trash — can be burned under some conditions. But there is no exception in the rule for burning wastes from commercial activities (house building or office remodeling, for example). So if a person follows this rule she will be able to burn household waste outdoors under some conditions, but can never burn commercial waste outdoors without having authority granted by the TCEQ. Burning commercial waste is therefore a violation of this rule … and a criminal violation of TWC Sec. 7.177(a)(5). That’s the way this rule works throughout. If the outdoor burning is done in conformity with this rule (or a TCEQ permit or order), then the fire is “legal.” But if there is no exception listed and no permit and no order, then the fire is in violation of this rule and therefore a criminal violation of TWC Sec. 7.177(a)(5).

Sec. 111.203. Definitions Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Commission on Environmental Quality (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA, the following terms, when used in this chapter, have the following meanings, unless the context clearly indicates

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otherwise. (1) Extinguished--The absence of any visible flames, glowing coals, or smoke. (2) Landclearing operation--The uprooting, cutting, or clearing of vegetation in connection with conversion for the construction of buildings, rights-of-way, residential, commercial, or industrial development, or the clearing of vegetation to enhance property value, access, or production. It does not include the maintenance burning of onsite property wastes such as fallen limbs, branches, or leaves, or other wastes from routine property clean-up activities, nor does it include burning following clearing for ecological restoration. (3) Neighborhood--A platted subdivision or property contiguous to and within 300 feet of a platted subdivision. (4) Practical alternative--An economically, technologically, ecologically, and logistically viable option. (5) Prescribed burn--The controlled application of fire to naturally occurring vegetative fuels under specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary measures. (6) Refuse--Garbage, rubbish, paper, and other decayable and nondecayable waste, including vegetable matter and animal and fish carcasses. This is a frequently used definition.

(7) Structure containing sensitive receptor(s)--A man-made structure utilized for human residence or business, the containment of livestock, or the housing of sensitive live vegetation. The term "manmade structure" does not include such things as range fences, roads, bridges, hunting blinds, or facilities used solely for the storage of hay or other livestock feeds. The term "sensitive live vegetation" is defined as vegetation that has potential to be damaged by smoke and heat, examples of which include, but are not limited to, nursery production, mushroom cultivation, pharmaceutical plant production, or laboratory experiments involving plants. One of the “safety rules” we’ll encounter in Sec. 111.219 will generally require smoke not to enter “structures containing sensitive receptors,” unless there is an agreement in place. Rather than protect the “sensitive receptor” herself or itself, the rule protects the structure containing the sensitive receptor. We’ll see below that some of these “safety rules” apply to some of the exceptions described in the various sections, but not every “safety rule” applies to all of the exceptions. This will make sense with further reading.

(8) Sunrise/Sunset--Official sunrise/sunset as set forth in the United States Naval

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Observatory tables available from National Weather Service offices. (9) Wildland--Uncultivated land other than fallow, land minimally influenced by human activity, and land maintained for biodiversity, wildlife forage production, protective plant cover, or wildlife habitat Sec. 111.205. Exception for Fire Training Note that this section does not require any of the seven “safety rules� listed in Sec. 111.219 be followed. Since this section is about training firefighters, I suppose the drafters of this rule thought that local fire chiefs would give due regard to the safety of any training. Occasionally a regional TCEQ administrative officer will attempt to impose a few of the safety rules that he or she thinks should be observed while conducting firefighter training. No doubt, these are all good ideas, but the rule currently imposes no requirement to follow any of the seven rules in Sec. 111.219. This is always a good source of interesting discussions between local firefighter management and some regional TCEQ offices. There is always room for different interpretations of a rule, but it is seldom appropriate to simply add provisions.

(a) Outdoor burning shall be authorized for training fire-fighting personnel when requested in writing and when authorized either verbally or in writing by the local air pollution control agency. In the absence of such local entities, the appropriate commission regional office shall be notified. The burning shall be authorized if notice of denial from the local air pollution control agency, or commission regional office is not received within 10 working days after the date of postmark or the date of personal delivery of the request. (b) Facilities dedicated solely for fire-fighting training, at which training routinely will be conducted on a frequency of at least once per week, shall submit an annual written notification of intent to continue such training to the appropriate commission regional office and any local air pollution control agency. (c) Facilities dedicated solely for fire-fighting training, at which training is conducted less than weekly, shall provide an annual written notification of intent, with a telephone or electronic facsimile notice 24 hours in advance of any scheduled training session. No more than one such notification is required for multiple training sessions scheduled within any one-week period, provided the initial telephone/ facsimile notice includes all such sessions. Both the written and telephone notifications shall be submitted to the appropriate commission regional office and any local air pollution control agency. (d) Authorization to conduct outdoor burning under this provision may be revoked by

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the executive director if the authorization is used to circumvent other prohibitions of this subchapter. Some communities like to burn structures to demolish them while pretending that they are conducting firefighter training exercises. There is no exception in this rule that allows the routine burning of empty houses, barns, and other structures without a permit or an order from the TCEQ. These would be commercial disposal fires, which always require prior authorization. This “pretended firefighter training” fire has happened enough times in Texas that there is a warning against the practice. Continued “pretend firefighter training” fires will eventually result in the loss of the ability to train firefighters at all. I’ve always wondered, “What sort of training is it to stand there, hose in hand, and watch a building burn to the ground?” I’m sure there are good reasons to occasionally practice non-responding, but it’s difficult to understand how that can be a good regular training. Firefighters could watch a structure burn to the ground without responding on YouTube.

Sec. 111.207. Exception for Fires Used for Recreation, Ceremony, Cooking, and Warmth Outdoor burning shall be authorized for fires used solely for recreational or ceremonial purposes, or in the noncommercial preparation of food, or used exclusively for the purpose of supplying warmth during cold weather. Such burning shall be subject to the requirements of Sec. 111.219(7) of this title (relating to General Requirements for Allowable Outdoor Burning). These are usually the sorts of fires that are the target of burn bans issued by commissioners’ courts. Generally these fires are perfectly fine, as long as “safety rule #7” — Sec. 111.219(7) — is followed. Note that the other six safety rules listed in Sec. 111.219 don’t apply to these sorts of fires. You may want to look ahead at that section and see what some of these other rules are. They cover such things as burning at night, burning when the weather conditions don’t support it, and other such things. Note that the safety rule at Sec. 111.219(7) has to do with burning dangerous items. When applied to this section, it says such things as “You can’t have a cooking fire using treated lumber” or “You can’t burn a tire for warmth” or “You can’t burn electrical insulation for recreational purposes.” These prohibitions make perfect sense to me.

Sec. 111.209. Exception for Disposal Fires Except as provided in Local Government Code, Sec. 352.082, outdoor burning is authorized for the following: Note that this section discusses seven different types of disposal fires, from trash to

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Illegal Outdoor Burning Class (Online)

animal carcass to brush. These seven types of disposal fires are allowed as exceptions to the general prohibition on outdoor burning. If you follow the details of the rule, you can have these types of disposal fires. However, if a particular type of disposal fire is not mentioned — such as a fire for the disposal of commercially generated waste — this type of burning is prohibited (unless the person has a permit or order from the TCEQ allowing the burning). Local Government Code, Sec. 352.082 refers to trash burning in some parts of rural Montgomery County. There’s a brief discussion of this back in the main part of this document. Also note that the seven “safety rules” described in Sec. 111.219 do not all apply to each of the seven types of disposal fires allowed by this section. For example in subsection (6) and (7) below, all seven of the safety rules of Sec. 111.219 seem to apply, but in subsection (4)(B) only four of the seven are mentioned. In the most widely discussed section — (1) which deals with burning domestic waste — none of the seven safety rules are mentioned at all.

(1) domestic waste burning at a property designed for and used exclusively as a private residence, housing not more than three families, when collection of domestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when the waste is generated only from that property. Provision of waste collection refers to collection at the premises where the waste is generated. The term "domestic waste" is defined in Sec. 101.1 of this title (relating to Definitions). Wastes normally resulting from the function of life within a residence that can be burned include such things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes not considered domestic waste that cannot be burned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances; This is the category of burning that gets the most questions. It amounts to folks in the unincorporated parts of most counties being able to legally burn their household trash, as long as they follow these provisions. The first sentence in this subsection — underlined above — is probably the worst sentence ever written in the English language, but it is very important. Here are the concepts and decisions it contains: 1. It’s talking about burning “domestic waste,” not commercial. The rule nowhere allows burning commercial waste without a permit or order, so burning commercial waste outdoors is almost always illegal. The term “domestic waste” is defined in the third sentence, and essentially means waste generated from normal life in the household. 2. The waste has to come from a place being used exclusively as a private

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Illegal Outdoor Burning Class (Online)

residence … as opposed to some guy living in the back of a commercial garage burning everything that he generates in the business and the kitchen. 3. The residence can not be housing over three families, and I have no idea of the history of this provision. However, with increased immigration by workers from several families sharing one residence, this may come into play. 4. Even if all of the rest of the provisions are met, burning can ONLY take place when the local government for the jurisdiction — the county commissioners’ court or the city council — fails to (a) “provide” or (b) “authorize” waste collection. This is a point for frequent error. It doesn’t matter if trash collection trucks are covering the whole county, until the commissioners “provide” or “authorize” collection through a formal process, you can still burn domestic waste. All cities I know of have “provided” or “authorized” waste collection through formal action, so you can’t legally burn domestic waste inside cities. Just a few counties have taken this step, however, and it hasn’t always worked too well — increased illegal dumping is often the result. This provision is easily the most confused, but until the commissioners or city council “provides” or “authorizes” waste collection, you can burn domestic waste in that jurisdiction. 5. And finally, this only applies to waste generated from that one property: no bringing in the neighbor’s domestic waste for a big community burn site. 6. During county burn bans, some commissioners’ courts stop all domestic waste burning and others allow its continuance in barrels with a grated cover. The notion followed here is that “Since we can completely ban domestic waste burning all together anytime we want by “providing” or “authorizing” waste collection, we can regulate it during a burn ban.” I can’t find any indication that this implied authority has ever been challenged. Note that the second sentence in the language of the rule in this section stipulates that “collection” does not mean having the citizen haul his domestic waste to some common site — such as citizens drop-off station established by the commissioners’ court — but requires collection at the property where the waste is generated. The rest of this subsection provides closer and closer definitions of what constitutes “domestic waste.” If a guy decides to burn his furniture and a few tires along with his trash, he’s gone too far and has violated this provision.

(2) diseased animal carcass burning when burning is the most effective means of controlling the spread of disease; (3) veterinarians in accordance with Texas Occupations Code, Sec. 801.361, Disposal of Animal Remains; (4) on-site burning of trees, brush, grass, leaves, branch trimmings, or other plant

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growth, by the owner of the property or any other person authorized by the owner, and when the material is generated only from that property: This is part of the provisions added in 2005 to THSC Sec. 382.018 that allows brush burning. Note that it breaks into two sections below: (A) gives the rule for counties that are part of a non-attainment area as far as National Ambient Air Quality Standards are concerned, and (B) is everywhere else. Remember what was said back in the main part of the class about meeting NAAQS standards. Most of Texas is considered by the TCEQ to meet NAAQS; in reality, most counties simply have not been tested. Hence most counties are simply assumed to be in compliance with NAAQS. In reality, that can be a very bad assumption. For instance, on the day following one with significant ozone generation in Dallas, our generally blue skies up here in Grayson County — fifty miles north of Dallas — look like the air over LBJ freeway on the previous day. Ozone can travel long distances before dissipating, and counties close to those with occasional “bad air” can be affected themselves. So not having been tested to determine if county air meets standards is very different from actually meeting those same standards. Many studies have shown that ground level ozone can be detected at distances hundreds of miles from the point of generation. It doesn’t take a lot of research to find reputable studies that have detected ground level ozone 250 to 500 miles from origin. The greatest distance I have found cited is 600 miles, from northern France into southwest England. If you would like to read more about ground level ozone and why it is so important to control it, you can access the EPA’s material at http://s.coop/1cqu9.

(A) in a county that is part of a designated nonattainment area or that contains any part of a municipality that extends into a designated nonattainment area; if the plant growth was generated as a result of right-of-way maintenance, landclearing operations, and maintenance along water canals when no practical alternative to burning exists. Such burning is subject to the requirements of Sec. 111.219 of this title (relating to General Requirements for Allowable Outdoor Burning). Commission notification or approval is not required; or If the county (or a neighboring county with a city over-lapping the border) is nonattainment — doesn’t meet federal standards as to its air quality — brush burning can only take place for “right-of-way maintenance, land clearing operations, and maintenance along water canals when no practical alternative to burning exists.” Check the definition of “land clearing” in Sec. 111.203 and you’ll see the statement “It does not include the maintenance burning of onsite property wastes such as fallen limbs, branches, or leaves, or other wastes from routine property clean-up activities.” In NAAQS non-attainment counties, brush burning for routine maintenance is not allowed under the rule. Also note the

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definition of “practical alternative”; some will argue that mulching or landfilling are always practical alternatives and others will argue that these are always too expensive. The further you go into rural Texas, the more this rule is ignored. For example, in my county — Grayson — we’ve never been monitored by the TCEQ, so our air is assumed to fall within the NAAQS limits. We should be following (B) below and burning brush to our heart’s content. However, Collin County, immediately to our south and a nonattainment county, falls within the restrictions of (A). Since the City of Van Alstyne straddles the Grayson/Collin border, Grayson is actually under (A) also. However, we pretty well ignore that fact, and proceed like we were governed by the following section (B).

(B) in a county that is not part of a designated nonattainment area and that does not contain any part of a municipality that extends into a designated nonattainment area; this provision includes, but is not limited to, the burning of plant growth generated as a result of right-of-way maintenance, land clearing operations, and maintenance along water canals. Such burning is subject to local ordinances that prohibit burning inside the corporate limits of a city or town and that are consistent with the Texas Clean Air Act, Chapter 382, Subchapter E, Authority of Local Governments, and the requirements of Sec. 111.219(3), (4), (6), and (7) of this title. Commission notification or approval is not required. The TCEQ maintains good information on NAAQS at http://s.coop/vfu0, but the best approach is to call the air program at your regional TCEQ office and ask about your county. There are different reasons that a county can be NAAQS nonattainment, and this will give you the opportunity to meet your contact at the agency. As far as the safety rules are concerned, notice that when burning brush under (A) — in a nonattainment area — you have to observe all seven of the safety rules in Sec. 111.219 (“Such burning is subject to the requirements of Sec. 111.219 of this title …”). But if you’re burning under (B) in an area with “good air,” you only have to comply with safety rules 3, 4, 6, and 7 in Sec. 111.219. Just remember: if you want to burn brush and other plant waste on the property where it grew, if you’re in a nonattainment area your authorization to burn is restricted. But if you’re in an attainment area, you can pretty well burn brush on the property were it grew anywhere in the unincorporated areas. You’d be able to burn brush inside cities too, if local ordinances against open fires didn’t prevent you from doing so (“such burning is subject to local ordinances …”).

(5) at a site designated for consolidated burning of waste generated from specific residential properties. A designated site must be located outside of a municipality

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and within a county with a population of less than 50,000.The owner of the designated site or the owner's authorized agent shall: This is the other major addition when THSC Sec. 382.018 was modified in 2005. With these changes, local governments — or private citizens, companies, or associations — can operate consolidated brush burning sites outside of cities, as long as the county has a population less than 50,000 (As of the last census date? As of the last date the state estimated the population? No “as of” date for the population figure is given in the law or this rule). The material authorized to be burned — plant growth waste as defined in (A) below — must come from specific residential properties. No burning from commercial properties is allowed, although the rule seems to allow for the use of commercial services to haul the brush from a designated residence to the consolidated burn site. Moreover, this subsection makes no reference to mandatory safety rules from Sec. 111.219 being followed. This is probably because (F) below requires a paid firefighter to be present at each burn at the consolidated site, and he or she will impose the appropriate safety rules at the time. Repeating the specifics of the changes to THSC Sec. 382.018 made by the State Legislature, a number of steps must be taken at the consolidated burn site. These are given in (A) through (E) below, including signage and record keeping requirements. Any variation from these specific rules — such as a wrong-sized sign, or brush from an un-listed residence being burned — would constitute a violation of the Texas Outdoor Burning Rule and TWC Sec. 3.177(a)(5). To me, this seems a little picky, but that’s the content of the underlying law creating this section.

(A) post at all entrances to the site a placard measuring a minimum of 48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE - No burning of any material is allowed except for trees, brush, grass, leaves, branch trimmings ,or other plant growth generated from specific residential properties for which this site is designated. All burning must be supervised by a fire department employee. For more information call {PHONE NUMBER OF OWNER OR AUTHORIZED AGENT}." The placard(s) must be clearly visible and legible at all times; (B) designate specific residential properties for consolidated burning at the designated site; (C) maintain a record of the designated residential properties. The record must contain the description of a platted subdivision and/or a list of each property address. The description must be made available to commission or local air pollution control agency staff within 48 hours, if requested; Most cities and counties don’t have a “local air pollution control agency.”

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(D) ensure that all waste burned at the designated site consists of trees, brush, grass, leaves, branch trimmings, or other plant growth; (E) ensure that all such waste was generated at specific residential properties for which the site is designated; and (F) ensure that all burning at the designated site is directly supervised by an employee of a fire department who is part of the fire protection personnel, as defined by Texas Government Code, Sec. 419.021, and is acting in the scope of the person's employment. The fire department employee shall notify the appropriate commission regional office with a telephone or electronic facsimile notice 24 hours in advance of any scheduled supervised burn. The commission shall provide the employee with information on practical alternatives to burning. Commission approval is not required; Requirement (F) is what will limit consolidated burn sites from becoming widespread in Texas. Since these facilities can only be located in counties of under 50,000, the primary fire-fighting generally is done in this size county by volunteers. Texas Government Code Sec. 419.021 reads: (3) "Fire protection personnel" means: (A) permanent, full-time law enforcement officers designated as fire and arson investigators by an appropriate local authority; (B) aircraft rescue and fire protection personnel; or (C) permanent, full-time fire department employees who are not secretaries, stenographers, clerks, budget analysts, or similar support staff persons or other administrative employees and who are assigned duties in one or more of the following categories: (i) fire suppression; (ii) fire inspection; (iii) fire and arson investigation; (iv) marine fire fighting; (v) aircraft rescue and fire fighting; (vi) fire training; (vii) fire education; (viii) fire administration; and (ix) any other position necessarily or customarily related to fire prevention or suppression. Since the only person who can supervise each burning event at a designated site is a full-time, permanent staff with significant professional credentials, there probably won’t be too many properly operated burn sites in the smaller counties. Note that

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there is no requirement for the officer to bring any particular equipment or vehicle with him or her.

(6) crop residue burning for agricultural management purposes when no practical alternative exists. Such burning shall be subject to the requirements of Sec. 111.219 of this title and structures containing sensitive receptors must not be negatively affected by the burn. When possible, notification of the intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required. This section is not applicable to crop residue burning covered by an administrative order; and Crop residue burning frequently is done in such a way that not all of the safety rules in Sec. 111.219 are followed — burning may happen at night or when atmospheric inversions are present — and “structors containing sensitive receptors” — sometimes entire small neighborhoods — are “negatively affected,” a difficult term to define, but probably including situations where asthmatic individuals are sent to the emergency room from smoke inhalation. Sometimes this apparent “rule breaking” is done because of an administrative order, as mentioned in the last sentence. At other times traditional agricultural interests have established long-held patterns of burning that are simply not challenged by state or local government, including those agencies having responsibility for protecting citizen health.

(7) brush, trees, and other plant growth causing a detrimental public health and safety condition burned by a county or municipal government at a site it owns upon receiving site and burn approval from the executive director. Such a burn can only be authorized when there is no practical alternative, and it may be done no more frequently than once every two months. Such burns cannot be conducted at municipal solid waste landfills unless authorized under Sec. 111.215 of this title (relating to Executive Director Approval of Otherwise Prohibited Outdoor Burning), and shall be subject to the requirements of Sec. 111.219 of this title. Burning every two months by a city to dispose of accumulated brush collected from city streets is fairly common, provided all of the safety rules established by Sec. 111.219 are followed. The regional office of the TCEQ will usually require site maps and will probably conduct pre-burn inspections before granting initial authority. Notice that each burn requires separate approval, which is generally given.

Sec. 111.211. Exception for Prescribed Burn Outdoor burning shall be authorized for: (1) Prescribed burning for forest, range and wildland/wildlife management purposes, with the exception of coastal salt-marsh management burning. Such burning shall be subject to the requirements of Sec.111.219 of this title (relating to General

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Illegal Outdoor Burning Class (Online)

Requirements for Allowable Outdoor Burning), and structures containing sensitive receptors must not be negatively affected by the burn. When possible, notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required. (2) Coastal salt-marsh management burning conducted in Aransas, Brazoria, Calhoun, Chambers, Galveston, Harris, Jackson, Jefferson, Kleberg, Matagorda, Nueces, Orange, Refugio, and San Patricio Counties. Coastal salt-marsh burning in these counties shall be subject to the following requirements: (A) All land on which burning is to be conducted shall be registered with the appropriate commission regional office using a United States Geological Survey map or equivalent upon which are identified significant points such as roads, canals, lakes, and streams, and the method by which access is made to the site. For large acreage, the map should be divided into manageable blocks with identification for each defined block. The information must be received for review at least 15 working days before the burning takes place. (B) Prior to any burning, notification, either verbal or written, must be made to, and authorization must be received from the appropriate commission regional office. Notification must identify the specific area and/or block to be burned, approximate start and end time, and a responsible party who can be contacted during the burn period. (C) Such burning shall be subject to the requirements of Sec. 111.219 of this title. Sec. 111.213. Exception for Hydrocarbon Burning Outdoor burning shall be authorized for hydrocarbon burning from pipeline breaks and oil spills only upon proper notification as set forth in Sec. 101.6 of this title (relating to Notification Requirements for Major Upset), and if the executive director has determined that the burning is necessary to protect the public welfare. Sampling and monitoring may be required to determine and evaluate environmental impacts. Sec. 111.215. Executive Director Approval of Otherwise Prohibited Outdoor Burning If not otherwise authorized by this chapter, outdoor burning may be authorized by written permission from the executive director if there is no practical alternative and if the burning will not cause or contribute to a nuisance, traffic hazard or to a violation of any federal or state primary or secondary ambient air standard. The executive director may specify procedures or methods to control or abate emissions from outdoor burning authorized pursuant to this rule. Authorization to burn may be revoked by the executive director at anytime if the burning causes nuisance conditions, is not conducted in

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accordance with the specified conditions, violates any provision of an applicable permit, or causes a violation of any air quality standard. This is the general “over ride” provision under which the TCEQ Executive Director can give permission, in writing, to burn in ways not authorized by this rule. Note that this permission does not extend to a particular TCEQ administrative enforcement officer adding a personal “requirement” that a person follow some safety requirement from Sec. 111.219 not specified in the rule itself.

Sec. 111.219. General Requirements for Allowable Outdoor Burning Outdoor burning which is otherwise authorized shall also be subject to the following requirements when specified in any section of this subchapter. These are the seven “safety rules” that apply to some of the exceptions in the rule. In some cases, none of these apply — like in training firefighters, where the chief is expected to know how to proceed safely. In others, a few of these apply, but not all — like disposal fires for brush in NAAQS attainment areas or fires for outdoor cooking. In others, all of the seven apply — like in the prescribed burns under Sec.111.211. Occasionally you’ll encounter someone that asserts that all of these apply to every outside fire — or will want to include his favorite from time to time — but this first sentence of Sec. 111.219 states differently. These safety rules apply to the various exceptions only when specified in any section describing an exception. When you think through the way in which safety rules are applied to various kinds of burning, they make good sense.

(1) Prior to prescribed or controlled burning for forest management purposes, the Texas Forest Service shall be notified. (2) Burning must be outside the corporate limits of a city or town except where the incorporated city or town has enacted ordinances which permit burning consistent with the Texas Clean Air Act, Subchapter E, Authority of Local Governments. See the section in the main class document about how local ordinances must be in conformity with the rules adopted to further the aims of the Texas Clean Air Act.

(3) Burning shall be commenced and conducted only when wind direction and other meteorological conditions are such that smoke and other pollutants will not cause adverse effects to any public road, landing strip, navigable water, or off-site structure containing sensitive receptor(s). (4) If at any time the burning causes or may tend to cause smoke to blow onto or across a road or highway, it is the responsibility of the person initiating the burn to post flag-persons on affected roads. (5) Burning must be conducted downwind of or at least 300 feet (90 meters) from any structure containing sensitive receptors located on adjacent properties unless

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prior written approval is obtained from the adjacent occupant with possessory control. Notice the language here. The burning has to be conducted (a) downwind of, or (b) at least 300 feet from structures containing sensitive receptors UNLESS prior written approval is obtained. If you’re simply “downwind” you’re fine and no permission is required. However, if the wind shifts you may suddenly be in violation. “Adjacent” property is not limited to “adjoining” property.

(6) Burning shall be conducted in compliance with the following meteorological and timing considerations: (A) The initiation of burning shall commence no earlier than one hour after sunrise. Burning shall be completed on the same day not later than one hour before sunset, and shall be attended by a responsible party at all times during the active burn phase when the fire is progressing. In cases where residual fires and/or smoldering objects continue to emit smoke after this time, such areas shall be extinguished if the smoke from these areas has the potential to create a nuisance or traffic hazard condition. In no case shall the extent of the burn area be allowed to increase after this time. (B) Burning shall not be commenced when surface wind speed is predicted to be less than six miles per hour (mph) (five knots) or greater than 23 mph (20 knots) during the burn period. (C) Burning shall not be conducted during periods of actual or predicted persistent low-level atmospheric temperature inversions. (7) Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned. This is a provision often incorrectly cited as applying to all burning every time. While that would possibly be a good idea, the rule simply doesn’t support that position. For instance, this subsection of the rule clearly applies to a cooking or warmth fire: burning these items for these purposes is clearly a violation of that section. On the other hand, this rule does not support the notion that one would have to take all wiring out of an old house being used for a firefighter training exercise under Sec. 111.205 before it can be burned. You can have a lively discussion on this point.

Sec. 111.221. Responsibility for Consequences of Outdoor Burning The authority to conduct outdoor burning under this regulation does not exempt or excuse any person responsible from the consequences, damages, or injuries

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resulting from the burning and does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the burning is otherwise conducted in compliance with this regulation. This section is why local fire departments should never “give permission” for anybody to burn Of course, even though all burning is controlled by the state through this rule, permits issued, and orders of the commission, some local fire departments continue to issue “permits” to burn. This practice often comes from attempting to follow the International Fire Code but ignoring its Section 307.2.1. When asked for “permission to burn,” local fire departments should (1) provide information about the Texas Outdoor Burning Rule; (2) inform the caller that the fire department does not have the authority to authorize fires; (3) direct the caller to the TCEQ air program at a regional office; and, (4) thank the person calling for letting the fire department know when a legal fire (according to the rule, a permit, or an order) is about to take place. But a local fire department in Texas should never be construed to be giving permission for an open fire. “Giving permission” for burning can only create potential liability for a fire department. Under this section, even if the fire taking place is completely within the law, the person doing the burning retains liability for any related property damage. The last thing a fire chief — or the attorney for the fire department — would ever want to hear is a citizen telling the court, “Well, the fire department gave me permission to do the burning, and it turns out they didn’t have the authority. Shouldn’t they pay too?” More can be done to develop local policies of recovering costs from individuals, companies, and associations that burn in such a manner as to require local firefighters to deal with the results. Sending bills to persons intentionally setting fires — for burning domestic waste in the unincorporated area, for example — for the costs of responding when those intentional fires get out of control should, in our opinion, be standard practice. If a local fire department has to use resources to respond to an intentionally set fire that gets out of control, the fire department should be reimbursed its cost of responding.

Now please return to where you were reading in the main class materials and continue.

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Illegal Burning Online Class Reading  
Illegal Burning Online Class Reading  

Illegal Burning Online Class Reading